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LAW
Nursesfor and
Midwives
Hon Justice Patricia J Staunton AM RN, CM,

LLB, MCrim; Barrister-at-Law of the Inner
Temple, London  
Professor Mary Chiarella RN, RM,
LLB (Hons), PhD (UNSW)
Sydney Edinburgh London New York Philadelphia St Louis Toronto

Churchill Livingstone
is an imprint of Elsevier
Elsevier Australia. ACN 001 002 357

(a division of Reed International Books Australia Pty Ltd)
Tower 1, 475 Victoria Avenue, Chatswood, NSW 2067
This edition © 2013 Elsevier Australia. Previous editions 1985, 1989, 1993, 1997,
2003 and 2008.
eISBN: 9780729581028
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This publication has been carefully reviewed and checked to ensure that the content is as accurate
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National Library of Australia Cataloguing-in-Publication Data
Author: Staunton, Patricia J.

Title: Law for nurses and midwives / Patricia J Staunton and Mary Chiarella.
Edition: 7th ed
ISBN: 9780729541022 (pbk.)
Subjects: Nursing–Law and legislation–Australia. Midwives–Legal status, laws, etc–Australia.
Other Authors/Contributors: Chiarella, Mary.
Dewey Number: 344.940414
Publisher: Libby Houston

Developmental Editor: Elizabeth Coady
Project Coordinators: Geraldine Minto & Karthikeyan Murthy
Edited by Desanka Vukelich
Proofread by Jon Forsyth
Cover and internal design by Lisa Petroff
Index by Robert Swanson
Typeset by Toppan Best-set Premedia Limited
Printed in China by 1010 Printing Int’l Ltd.
Contents
Preface xii How might the nurse respond? 29
Reviewers xiii What resources are available to
Table of Abbreviations xiv assist nurses and midwives to
address such dilemmas? 31
CHAPTER 1 Introduction to Major ethical theories 32
the law 1 Deontological or intrinsicalist theories 32
Understanding what the law is 1 Teleological or consequentialist theories 33
Influence of the different Modern feminist ethics 33
philosophies on the development The four major ethical principles 34
of our laws 2 Autonomy 34
Where does our law come from? 3 Beneficence 35
Development of the common law 3 Non-maleficence 35
Parliamentary or statute law 5 Justice 36
The application of English legal Models for ethical decision-making
principles to Australia 5 in healthcare 36
How the law operates 8 Clearly state the problem 36
Criminal law 8 Get the facts 38
Civil law 9 Consider the fundamental ethical
Civil and criminal consequences principles 38
from one action 10 Consider how the problem would
Administrative machinery of the law 11 look from another perspective or
State and territory courts 12 using another theory 38
Local courts or Magistrates’ Courts 12 Identify ethical conflicts 39
District or County Courts 13 Consider the law 39
State and territory Supreme Courts 14 Make the ethical decision 39
Federal courts 14 Evaluate the decision 39
Federal Magistrates Court 14
CHAPTER 3 Professional
Family Court of Australia 15
Federal Court of Australia 15
negligence and vicarious
High Court of Australia 15 liability 43
Other court systems and tribunals 16 Negligence as part of the law of
The appeal process 16 civil wrongs 43
The doctrine of precedent 16 Legislative changes affecting the law
Who pays the bill? 17 in relation to civil negligence and
Criminal law 17 professional negligence in particular 43
Development of the criminal law 18 Professional negligence in a
healthcare context 45
The elements of a crime 19
Negligence: Principle 1 — that the
Criminal negligence and the defendant owed the plaintiff a duty
significance of the element of of care 46
intent in healthcare settings 20
Duty of care as a nurse or midwife 46
CHAPTER 2 The relationship What is the position outside of work? 47
Determining the standard of care
between law and ethics 25 for healthcare professionals generally 50
Ethics: what it is 26 Standard of care in treatment cases 50
Ethics: what it is not 28 Legislative provisions relevant to
An example of an ethical problem 28 determining the standard of care 54
v
CONTENTS
The determination of the standard Damage suffered by the plaintiff 95

of care in treatment cases following The causal relationship between
the introduction of the civil liability the damage and the negligent act 98
legislation in the states and territories 58 Barnett v Chelsea and
The standard of care in Kensington Hospital 99
information cases 59 Hotson v Fitzgerald 101
The standard of care expected of Finch v Rogers 103
nurses and midwives acting in a Tabet v Gett 104
professional capacity 63
Negligence: Principle 4 — the damage
Expert evidence from professional peers 63 that the plaintiff is complaining
Professional practice standards 64 about is a reasonably foreseeable
Statutory obligations 65 consequence of the defendant’s
Departmental guidelines and/or negligent act 105
employer policy and procedure Damages 107
directives 66 Provision for an apology within
Academic texts and publications 67 the context of potential civil
The patient’s medical records 67 liability for negligence 109
Understanding the approach to Time limits or limitation periods 111
be taken in determining the Defences to an action in negligence 112
professional standard of care 67 A general denial and rebuttal of
Example 1: Coroner’s Inquest the allegation 112
into the death of Tracey Baxter 68 Contributory negligence 113
Example 2: Sha Cheng Wang (by his Voluntary assumption of risk 114
tutor Ru Bo Wang) v Central Sydney Vicarious liability 114
Area Health Service 73
Who is an employee for the purposes
Example 3: McCabe v Auburn of the doctrine of vicarious liability? 115
District Hospital 77
Example: Albrighton v Royal
Example 4: Norton v Argonaut Prince Alfred Hospital 118
Insurance Company 80
Example: Ellis v Wallsend
Example 5: Ison v Northern Rivers District Hospital 119
Area Health Service 81
What constitutes the course and
Example 6: Langley v Glandore Pty scope of employment? 123
Ltd (in liquidation) 84
Problems arising from the use of motor
Example 7: Elliott v Bickerstaff 86 vehicles provided by the employer 125
Example 8: Coroner’s Inquest into Contribution and indemnity 127
the death of Samara Lea Hoy 87
The employer’s personal liability 128
Questioning a medical
practitioner’s orders 91 The nurse or midwife as an
independent contractor 129
Example: Coroner’s Inquest into
the death of Timothy John Bice 91 Professional indemnity arrangements
for healthcare professionals 129
Other examples 93
The nurse or midwife as a good Samaritan 131
Negligence: Principle 2 — that the
defendant’s conduct on the occasion CHAPTER 4 Consent to
in question fell below the standard treatment 137
of care expected 94
Negligence: Principle 3 — that, as Why is consent important? 137
a consequence of the defendant’s Assault and battery 137
breach of his or her duty of care to Relevance of consent generally 138
the plaintiff, the plaintiff suffered damage 94 Negligence must be distinguished 138
vi
Contents
What information is available to help Terms and conditions of the

professionals and patients? 141 contract of employment 182
How may consent be given? 142 The employee’s obligations 183
What are the elements of a The employer’s obligations 184
valid consent? 144 The creation of an industrial award or
Any consent given is freely workplace agreement 186
and voluntarily given 144 How the contract of employment is
The patient is informed ‘in broad terminated 189
terms of the nature of the A contract for a fixed period or
procedure which is intended’ 145 a specific undertaking 189
How much information does the Death 189
patient require to make a decision Transfer of business 189
to consent to treatment? 146 Frustration or impossibility of performance 189
Who is responsible for giving sufficient Consent 190
information to a patient? 148 Redundancy 190
Therapeutic privilege 152 Termination by notice 190
The person giving consent has the What constitutes an ‘unfair’ dismissal
legal capacity to give such consent 153 warranting reinstatement? 191
Adults and consent 154 Workplace health and safety 192
Statutory provisions 161 Occupational health and safety
Temporary factors which might legislation 193
impair capacity 162 Duty of care owed by an ‘
Minors and consent 162 employer’ under the model
The right to refuse medical treatment 169 Work Health and Safety Act 194
Start a new report 170 What is meant by ‘reasonably
Advance directives, advance care practicable’ 195
planning and proxy decision-making 170 Definition and duties of a ‘worker’
The right to restrain or detain patients and ‘others’ under the Act 196
without their consent 171 Obligation on a PCBU to consult
What is false imprisonment? 173 with workers 196
How is false imprisonment committed? 173 Requirement for workplace health
Restraint must be intentional and safety representative(s), work
and complete 174 groups and health and
safety committees 197
Defences to an action alleging
Compliance provisions under
false imprisonment 175
workplace health and safety legislation 198
Reasonable condition 175
Entry by an authorised union officer 199
Lawful arrest in relation to
Penalties for non-compliance 199
criminal offences 175
A comprehensive workplace health
Specific defences in relation to
and safety system 199
hospitals and healthcare generally 175
Workers compensation 200
CHAPTER 5 The contract of Workers compensation versus
other types of compensation for
employment, including injury at work 200
occupational health and How does an employee qualify for workers
safety and workers compensation payments? 200
compensation 181 The person must be an employee 201
The contract of employment 181 Injury or disease 201
vii
CONTENTS
Arising out of or in the course Patients’ right of access to their

of employment 202 healthcare records 245
Defences to a claim for workers At common law 245
compensation 204 Legislative provisions in relation to
Making a workers compensation claim 205 right of access to healthcare records
Some practical considerations and and privacy considerations 246
advice concerning workers Open disclosure 247
compensation 206
Safe system of work 207 CHAPTER 8 Professional
regulation of nurses and
CHAPTER 6 The administration midwives 253
of drugs 211 Introduction 253
Examining the relevant Regulations 214 Relevant legislation and structure of the
Schedule 4: restricted substances 214 scheme 253
Schedule 8: controlled substances 215 The National Boards 255
Ward registers or drugs books 216 Principles of the new National
Registration and Accreditation Scheme 256
Problem areas with drugs 218
The national registers 259
Administrative considerations 218
Student registration 260
Clinical considerations 219
The nursing and midwifery board
Endorsements for medication of Australia (NMBA) 261
administration under the new Codes of conduct and ethics and
national registration scheme 222 competency standards 261
Criminal and professional issues relating Standards for initial registration 262
to the administration of drugs 223
The continuing professional
Appendix A: List of statutes and development registration standard 263
regulations governing medications
The professional indemnity insurance
in Australia 224
registration standard 265
CHAPTER 7 Report writing 227 The recency of practice (RoP)
registration standard 266
Report writing 227 Endorsements under section 94 of
Relevant considerations in writing reports 228 the National Law 268
Integrated recordkeeping 231 Endorsement as a nurse practitioner
Reading the patients’ records 231 under section 95 269
Nurse practitioners’ access to the
The value of good nursing records when
Australian Government Medicare
used as evidence in court 232
Benefits Schedule (MBS) and the
The difficulties for nurses when Pharmaceutical Benefits Scheme (PBS) 271
records produced in court are poor 233
The regulation of midwifery 272
Principles in relation to documentation 233
Background 272
Advice available to nurses on documentation
Eligible Midwives Registration
and confidentiality 236
Standard under section 38(2) 273
Documentation in nursing homes 237 Registration Standard for Endorsement
The national e-health transition for Scheduled Medicines for Midwives
authority (NEHTA) 238 under section 94 275
Reporting and documenting adverse Professional indemnity insurance
events and clinical incidents 240 requirements for privately practising
Confidentiality of healthcare records 243 midwives 277
viii
Contents
Other NMBA guidelines for nurses Donation of tissue after death 311
and midwives 279 Ongoing difficulties with organ donation 312
Notifications and complaints about Post-mortem examinations 313
nurses and midwives 280 Assisted reproductive technology (ART)
The New South Wales complaints system 284 and donation of reproductive tissue 314
The accreditation of nursing and Ovulation induction 315
midwifery courses 284 Artificial insemination 315
IVF (In vitro fertilisation) 315
CHAPTER 9 Coronial jurisdiction 289
GIFT (Gamete intrafallopian transfer) 315
The position of coroner in our ZIFT (Zygote intrafallopian transfer) 315
legal system 289 ICSI (Intracytoplasmic sperm injection) 315
The role of the coroner 290 Epididymal and testicular sperm
Reportable deaths leading to an inquest 290 extraction 315
Who notifies a ‘reportable death’ 291 Freezing of sperm and embryos 315
The procedure following notification Donor eggs, embryos and sperm 316
of a ‘reportable death’ 291
Findings and recommendations that CHAPTER 11 Mental health 319
may arise from a coroner’s inquest 293 Legislative approach 321
The relevance of a coroner’s inquest for Australian Capital Territory: Mental
nursing staff 294 Health (Treatment and Care) Act 1994 321
Legal representation at the inquest 295 Definitions 321
Relevant advice and procedure for Admission to and detention in
nurses and midwives in relation to a mental health facility 322
a coroner’s inquest 295 Patient rights, review of care and
Procedure prior to an inquest 296 appeal mechanisms under the Act 328
When an inquest is held or likely Appeal rights 329
to be held 296
Official visitors 329
Extract from the New South Wales Nurses’
New South Wales: Mental Health
Association guidelines for
Act 2007 331
the purposes of giving statements
for coroners’ inquests and other Definitions 331
disciplinary matters 298 Admission to and detention in a
mental health facility under the
CHAPTER 10 Human tissue New South Wales Act 334
transplantation 301 Admission of a person as a
voluntary patient 334
History and background of human
Admission of involuntary patients 336
tissue transplantation and research 301
Nomination of primary carer by a
Classifications of human tissue 302
person admitted as a voluntary
Development of law in relation to patient, or detained as an
usage of human tissue 303 involuntary patient, ‘assessable
The requirement for consent in person’ or subject to a community
live donations 305 treatment order under the Act 339
Adults 308 Limited detention of a mentally
Children 309 disordered person 341
Removal of blood 310 Detention of a mentally ill person 341
Adults 310 What is the Mental Health
Children 311 Review Tribunal? 343
ix
CONTENTS
The composition of the tribunal 343 Guardianship Board 380

The role of the tribunal 344 Patient rights, review of care and
The procedure of the tribunal 344 appeal mechanisms under the Act 381
Appeals from decisions of the tribunal 345 Community visitors 382
Forms and types of treatment Appeal rights 382
under the Act 345 Tasmania: Mental Health Act 1996 383
Community treatment orders 345 Definitions 383
Electroconvulsive therapy (ECT) 347 Admission to and detention in
Surgery or special medical treatment 349 an approved hospital 384
Patient rights, review of care The role of the Mental Health Tribunal 388
and appeal mechanisms under Forensic Tribunal 389
the Act 350
Forms and types of treatment
Review of care 351 under the Act 390
Northern Territory: Mental Health Patient rights and the role of
and Related Services Act 1998 352 official visitors under the Act 391
Objectives and definitions 352 Official visitors 391
Admission to and detention in
Victoria: Mental Health Act 1986 392
an approved treatment facility 354
Proposed new Mental Health
Forms and types of treatment
Act for Victoria 392
under the Act 358
The regulation and prohibition Mental Health Act 1986 392
of certain forms of treatment Definitions 392
under the Act 359 Admission to and detention in an
Patient rights, community visitors and approved mental health service 394
appeal mechanisms under the Act 362 Voluntary admissions or treatment 394
Mental Health Review Tribunal 363 Involuntary admission or treatment 394
Appeals to the Supreme Court of the Mental Health Review Board 396
Northern Territory 363 Forms and types of treatment
Queensland: Mental Health Act 2000 363 under the Act 398
Definitions 364 Application of bodily restraint
Admission to and detention in an and seclusion 403
authorised mental health service 365 Patient rights, review of care and
Justices examination order 366 appeal mechanisms under the Act 406
Emergency involuntary assessment 367 Community visitors 408
Involuntary treatment order 368 Western Australia: Mental Health
Treatment plans 369 Act 1996 409
The role of the Mental Health Review Definitions 409
Tribunal and Mental Health Court 370 Admission to and detention in
Forms and types of treatment an authorised hospital 410
under the Act 371 Emergency psychiatric treatment,
Treatment prohibited by the Act 372 seclusion and restraint of patients 412
Restraint and seclusion 372 Forms and types of treatment
Patient rights, review of care and under the Act 414
appeal mechanisms under the Act 374 Patient rights, review of care and
South Australia: Mental Health Act 2009 375 appeal mechanisms under the Act 415
Definitions 375 Mental Health Review Board 415
Admission to and detention in an
approved treatment centre 376 Index 417
x
Dedication
To my parents with love and affection. Patricia Staunton
For Laurie. Mary Chiarella
xi
Preface
It has always been our goal to provide nursing students and practising nurses with
an introduction to the legal issues relevant to the provision of health care in Aus-
tralia, and do so in a practical and readily understandable text with a clear, concise
and readable exposition of the law.
With the recent changes to regulations for nurses and midwives under National
Registration, we have updated the seventh edition of Law for Nurses and Midwives
with the aim of reflecting these standards, and as the new title indicates, incorpo-
rated legislation relevant to midwifery practice.
All chapters have been revised and updated to reflect recent changes in legislation
and regulations relating to nursing and midwifery practice, as have references to
relevant court decisions. Special attention has been given to areas where legislative
provisions apply, such as professional standard of care, occupational health and
safety, coroners’ jurisdiction and mental health, to ensure that a nationwide perspec-
tive is provided.
Chapter 8 Professional regulation of nurses and midwives has undergone a complete
rewrite to incorporate the new standards and regulations established by the Nursing
and Midwifery Board of Australia (NMBA) for National Registration, and includes
a specific section on maternity services law to address the new standards and guide-
lines for eligible midwives.
As always, we are extremely grateful for the comments and feedback we have
received from readers and professional critics of our text to ensure it remains relevant
to those who use it.
Again, we thank our own staff who have provided us with assistance in undertak-
ing our task as well as our publishers for their support and patience during the
writing of the seventh edition.
We trust this most recent edition of our text continues to provide assistance to
all who use it and we thank them for their encouragement and interest in the
ongoing editions of this text.
xii
Reviewers
Lyn Francis BN, MHM, LLB, LLM, G.Cert PTT

Lecturer, School of Nursing and Midwifery, Faculty of Health, University of Newcastle,
NSW Australia
Amanda Stott, RN, BSocSc (Psych), MEd

Lecturer in Nursing, Academic Advisor, Charles Sturt University, Bathurst, NSW Australia
xiii
Table of abbreviations
A I
AIMS Advanced Incident IIMS Incident Information
Management System Management System
AC Appeal Cases IIS Incident Information System
ACORN Australian Council of J
Operating Room Nurses
(now the Australian College J Judge
of Operating Room Nurses) L
AHEC Australian Health Ethics LQR Law Quarterly Review
Committee LRC Law Reform Commission
AHWAC Australian Health Workforce
Advisory Committee N
AIRC Australian Industrial Relations NEHTA National e-Health Transition
Commission Authority
ALJ Australian Law Journal NHMRC National Health and Medical
Research Council
All ER All England Reports
NMBA Nursing and Midwifery Board
ALR Australian Law Reports of Australia
ANMC Australian Nursing and NSWLRC NSW Law Reform Commission
Midwifery Council
NSWR New South Wales Reports
APAC Australian Pharmaceutical
Advisory Council P
ART assisted reproductive P President
technology
Q
C QB Queens Bench
CCO continuing care order QC Queens Counsel
CHF Consumer Health Forum QPD Queensland Parliamentary
CLR Commonwealth Law Reports Debates
COAG Council of Australian R
Governments
RCA root cause analysis
CTO community treatment order
S
D SAC Severity Assessment Code
DEST Department of Education,
SASR South Australian State Reports
Science and Training
E W
WLR Weekly Law Reports
ECT electroconvulsive therapy
EHR electronic health record
xiv
Chapter 1
Introduction to the law
A knowledge of the law as an adjunct to a primary area of activity such as nursing

and midwifery requires that, in the first instance, the nurse or midwife has a rudi-
mentary understanding of what the law is, where it comes from and how it operates.
Such an understanding is essential to enable them to extract from a seemingly
complex system sufficient practical information to be of benefit to them in their
professional activities.
Understanding what the law is

It is not desirable or necessary, in our view, to seek to precisely define what the law
is. What is more important is to understand the rationale behind the development
of the law and its role in society.
The sophisticated and complex legal system that exists in Australia today repre-
sents the development of many centuries of Western civilisation. The discovery and
colonisation of Australia by England over 200 years ago saw the adoption in this
country of the legal system and principles that existed in England at that time. The
English legal system, as it then was, originated in primitive community or village
systems and its historical development can be traced back over centuries of inva-
sions. These primitive communities recognised even then the need for rules of
behaviour which encompassed respect for each other and each other’s property to
ensure a degree of order in the community.
Hand in hand with such recognition was the inevitable desire for dominance and
power of man over man, which has played such a major role in the development
and subsequent decline of civilisations over the centuries.
Inevitably what started as a primitive and crude system for rules of behaviour,
operating on an individual community or village basis, was forced to develop and
change over the centuries. This development and change was brought about by
population growth, the diversity and sophistication of community systems, and
rapid industrial and technological growth.
The law essentially comprises rules of behaviour to do with the recognition of
personal and property rights. Within that process certain philosophies have clearly
1
LAW FOR NURSES AND MIDWIVES 7E
influenced, and continue to influence, the development of such rules. Primarily

these are referred to as natural law and positive law philosophies.
Natural law philosophies, as a general rule, saw the origins of law arising from a
higher or divine being which encompassed the notion of divine retribution operat-
ing in human affairs. Such a philosophy embraced the concept of sin as a transgres-
sion against the divine will, or contrary to certain principles of morality.
The development of the Greek civilisation, and to a lesser extent the Roman
civilisation, was influenced by such natural law philosophies (in the shape of their
gods), which stressed individual worth, moral duty and universal brotherhood. Such
philosophies were developed further during the medieval period in Europe by the
increasing influence of the Catholic Church, which set the tone and pattern of all
speculative thought. The Catholic Church pursued this natural law view as law
derived from God with one faith, one church, one empire — not man-made but
conceived as part of the universe.
In summary, natural law philosophies look upon situations as they might or
ought to be, as opposed to how they are. It is essentially an idealist notion with
strong moral overtones. As an example, the United Nations Declaration of Human
Rights is essentially a natural law document.
Positive law philosophies view law in a totally secular cast without regard for divine
prescriptions or intervention. Such views emerged during the renaissance period of
European history (fourteenth to sixteenth centuries), which saw the rise of inde-
pendent national states and churches, and emphasis on the individual. Further
development occurred during the nineteenth century when states were established
with absolute sovereignty not subject to an external natural law. The industrial revo-
lution and the development of science supported this imperative theory of law,
which saw the key concepts of law as being:
a) the command;
b) of a sovereign (used in this context sovereign means the person or party in
power);
c) backed by a sanction (that is, the penalty imposed for non-compliance with
the command of the sovereign).
Such a view of the law takes no account of morality and indeed positive law is
most evidenced in the rigid separation of law and morals.
Influence of the different philosophies on the development of our laws
Natural law philosophies have had their greatest impact on the development of the
legal systems of Western civilisation in shaping statements of ideal intent. As an
example, the United States Constitution states that the individual has the right to
certain fundamental freedoms — two of which are the freedom of speech and
freedom of the press. Although such rights are guaranteed in the Constitution, such
rights are not absolute in practice, as they are subject to constraints that prohibit
that freedom in certain circumstances. As an example, the freedom of the press is
subject to the laws of defamation, which will prevent the publication of material in
particular circumstances. Nevertheless, it is the intent of the United States Constitu-
tion to guarantee absolute freedom of speech and of the press, so that every citizen
2
1 • Introduction to the law
and the press should be able to speak their mind and state their views freely, without
fear of reprisal.
Natural law philosophies have also been responsible for the continuing influence
of morality in shaping some of our present laws, much to the disapproval of positiv-
ist lawyers who believe morality should play no part in such an activity. As an
example, two areas of law-making where morality and religious influences have
played a significant role in shaping the present law have been the contentious areas
of abortion and homosexuality.
The positive law view that law is a command of a sovereign backed by a sanction
means that no regard should be paid as to whether or not the command of the
sovereign may be immoral by community standards. The mere fact that the sover-
eign has the power to command and impose a sanction for non-compliance legiti-
mises such a command. An example of such a situation is the international legal
recognition that is given to governments of various countries whose government
regimes would be considered by any moral standards to be odious and repressive.
Both philosophies have had an impact on the laws that we have today and will have
in the future.
Where does our law come from?

As a legacy of our colonisation by England, Australia as a nation inherited many of
England’s laws — certainly its legal principles — and in doing so the historical
development of its legal system. Therefore, it is necessary to examine briefly the
history of the English legal system in order to understand ours.
The historical development of the English legal system saw the emergence of two
major sources of law:
1) common law;
2) parliamentary or statute law.
Development of the common law

To understand how the common-law principles developed it is necessary to appreci-
ate that the land mass known to us as England and Wales was not always the densely
populated modern community that it now is. The initial development of English
common-law principles to be established on a central unified basis goes back to the
time of Henry II, who ruled England from 1154 to 1189. At that time Henry’s
kingdom consisted of a large number of feudal villages, each presided over by the
feudal lord or chief of the village. Communication as we know it did not exist,
battles between warring factions were not uncommon and Henry was having the
usual problem of maintaining power and control over his kingdom that English
monarchs were wont to have in those times. The law, as then understood and
applied, consisted of the rules of the individual villages, generally based on custom,
which were administered and interpreted by the feudal lord of the village. Such
rules were generally arbitrary and subjective, were changed frequently and varied
from village to village. In an attempt to unify his kingdom and as an alternative to
the capricious and variable nature of the individual village laws, Henry offered his
subjects access to his law, known as the King’s law. This law was also based on
3
custom but had the great advantage of universal application. Henry arranged
for his knights to visit each village in his kingdom on a regular basis to deal with
disputes that had arisen. The villagers had the choice of being dealt with by the
feudal lord according to the laws of the village, or they could wait and be dealt with
by the King’s knight according to the King’s law. The King’s emissary was usually
fairer, as he was able to be more objective and his decisions were more certain
and predictable. In due course more and more people chose to have disputes dealt
with in this way and gradually the King’s law supplanted the village law system
completely.
In offering an alternative system of development and administration of law to
his subjects, Henry II was also responsible for commencing the first central unified
system of law reporting. In travelling from village to village, not only did his knights
attempt to administer the law fairly and objectively but, having applied certain
principles to a particular set of facts in one village, they would do so in all future
situations where the same facts arose. In order to be able to do that, they kept notes
of the cases they had dealt with and referred to them as required. The recording of
previous decisions and the facts upon which they were based saw the emergence of
certain principles concerning personal and property rights, which became estab-
lished and were known as common-law principles. As communities developed and
society became more complex and sophisticated, those well-established principles
were expanded and developed by the courts and judges who had long replaced
Henry’s knights of old.
The common-law principles that were established as part of the King’s law gradu-
ally became rigid and inflexible — often with unfair results. To overcome the rigidity
of the King’s law, the law of equity was developed. This consisted of the application
of equitable principles, which attempted to soften the often harsh consequences of
the common law. An example of a well-established equitable principle is the recog-
nition given to a wife’s interest in the matrimonial home. A wife may not have made
a direct financial contribution to the matrimonial home and her name may not be
registered on the certificate of title as a joint owner of the property; however, the
courts will recognise that her contribution towards the maintenance and upkeep of
the home and family entitles her to have an equitable interest in the property, which
can then be financially apportioned. Over the centuries those equitable principles
recognised by the courts have also become fixed and rigid in their application.
Nevertheless, that body of law known as equity and the principles developed by it
are as well established and applicable today as the common-law principles.
It is interesting to speculate that the present-day District or County and Supreme
Courts, which travel to cities and towns in each state and territory for one or two
weeks at a time to administer the law, owe their origins to the primitive system of
the King’s knights travelling on horseback from village to village administering the
King’s law.
Clearly, the 850 or so years that have passed since Henry II’s time have seen the
continued development by the courts of the common-law legal principles. Such
principles are well enunciated and recorded in the present sophisticated system of
law reporting, which represents the history of such development through decisions
of the courts. The principles enunciated in the recording of cases in the law reports
4
are the authorities relied upon by lawyers to support a legal argument based on
common-law principles. This is sometimes referred to as case law.
As the court system developed, applied the common-law principles and recorded
them, certain power struggles were developing, centred on the perceived divine right
of the monarchy and the right of the people to have a say in the affairs of govern-
ment. This struggle culminated in the establishment of the second major source of
our law — parliament.
Parliamentary or statute law

The institution of parliament as we know it today, with the power to make and
unmake laws, was the result of many years of turmoil and struggle in English history.
The long-established divine right of the monarchy, with the power to make and
unmake laws and to tax the people at will without accountability, was gradually
eroded by increasing demands for representation and participation in government.
Out of the demands for representation and participation came the early beginnings
of a parliament representative of the people. One of the powers which the early
parliaments soon took upon themselves and away from the monarchy was the power
to make laws. Although parliaments have also changed in complexity and sophis-
tication, their fundamental right to make laws has remained unchallenged. In the
last century particularly, parliaments have increased their law-making role signifi-
cantly, in order to keep pace with social, industrial and technological changes in
the community. In addition, many of the well-established common-law principles
have been extended or replaced by statutory laws to take account of such changes.
Laws created by a parliament are embodied in documents known as Acts of that
parliament and commonly referred to as legislation. When a document concerning
a particular matter is placed before a parliament with the intention of creating
legislation it is known as a Bill. Once it has been passed by both houses of parlia-
ment (with the exception of Queensland, which has only a lower house) and subject
to any amendments on the way, it then receives the Royal Assent from the Queen’s
representative and is formally proclaimed an Act of parliament. The provisions of
an Act are known as statutory law (or statutory authority). Acts of parliament often
have a separate document known as Regulations, which accompany the Act and
should be read in conjunction with it. The Regulations generally give precise direc-
tions which must be followed in order to comply with the intent of the Act; for
example, the Regulations relating to the New South Wales Poisons and Therapeutic
Goods Act 1966.
Apart from their role in expounding and applying the common-law principles,
the courts are now increasingly occupied in interpreting the statutory law passed
by the relevant parliaments.
The application of English legal principles to Australia

The inheritance of the principles and sources of law arising from our colonisation
by England laid the groundwork for the development of our legal system.
The English common-law principles have been universally adopted throughout
the states and territories of the Commonwealth as the basis for future development
5
of the law. There were also English statutes which provided constitutions for each
of the Australian states and territories. For example, the English Act referred to as
4 George 4 (1823) established the New South Wales Legislative Council, with the
power to make laws for the peace and good government of New South Wales. This
power was clarified by another English Act known as the Australian Courts Act
(1828) which stated that English law was to be applied ‘so far as it can be applied’;
that is, the state was given its own parliament with the power to make laws for New
South Wales. The same approach was followed as the other states of Australia were
settled and developed. The end result was that, prior to Federation, the land mass
known as Australia consisted of a number of self-governing and independent colo-
nies of the United Kingdom. However, the creation of the Federation in 1901, with
concurrent parliamentary systems in each state, and their inherent law-making
powers, posed significant problems.
The creation of the Federation pursuant to the Commonwealth of Australia Con-
stitution Act 1901 (Cth), which was passed by the United Kingdom Parliament,
established a Commonwealth Parliament, and the former colonies became states of
the Commonwealth of Australia. In the same Act, exclusive powers to make laws
in relation to certain areas were given to the Commonwealth Parliament. Those
areas are set out in section 51 of the Act, and include such common policy matters
as customs, currency, overseas trade, defence, and divorce and matrimonial causes.
At the same time the same section provided for the sharing of certain powers
between the Commonwealth and the states and territories. Such powers are known
as concurrent powers. By implication, matters not mentioned in section 51 or else-
where in the Constitution comprise the powers that can be exercised exclusively by
the state or territory parliaments.
The outcome of such a sharing of powers with the right to make laws in relation
to them means that all Australian citizens are subject to the laws of two parliaments
— the Commonwealth Parliament and the parliament of the state or territory in
which they reside. Understandably it can sometimes be confusing.
As far as the power to make laws in relation to health is concerned, it is a concur-
rent power shared between the Commonwealth and the states and territories. For
example, the Commonwealth has responsibility for the legislation underpinning the
funding of Medicare and general health insurance. Consequently, the Common-
wealth has control over the level and extent of financial rebate that is paid by
Medicare for general practice fees and medical specialist consultation fees. It also
controls the level of fees able to be charged by health insurance companies and
administers and subsidises the Pharmaceutical Benefits Scheme available to all
Australians in relation to the cost of approved and prescribed medications. However,
it is state and territory governments that have control of and responsibility for the
delivery of hospital and public health services as well as a broad range of commu-
nity-based public healthcare services. In 2012, the Commonwealth has introduced
a number of sweeping changes to the funding arrangements for the public hospital
system in Australia that will see the Commonwealth have a much more direct say
in the delivery of public hospital services throughout Australia.
A significant change to the registration of health professionals has occurred since
1 July 2010. Prior to that date, each state or territory was responsible for registering
6
the diverse range of health professionals who wished to practise in a particular state
or territory and a nurse or widwife had to be registered in each state or territory
where she or he wished to practise.
As of 1 July 2010, a National Registration scheme for health professionals,
including nurses and midwives, has been implemented throughout Australia. The
new system is known as the National Registration and Accreditation Scheme
(NRAS) for health professionals. This significant legislative change titled the Health
Practitioner Regulation (Consequential Amendments) Act 2010 (Cth) now means that
nurses and midwives only need to hold one licence to practise in order to work as
a nurse or midwife in any state or territory.
There is now a National Nursing and Midwifery Board of Australia to oversee
the changes. Full details of the changes made and the implications for nurses and
midwives in relation to their practice responsibilities are found in Chapter 8.
It is nevertheless important to remember that although the common-law prin-
ciples do not vary from state to state or territory, and apart from the national
approach introduced in relation to the regulation and registration of health profes-
sionals, there are still specific provisions of individual state or territory legislation
in relation to the delivery of health services that can, and do, vary between each
state and territory. For example, each state and territory has its own Mental Health
Act that, while generally consistent in their respective approaches, do vary. The same
applies to the legislation relating to the control and supply of poisons and prohibited
substances which governs the administration of dangerous drugs and drugs of addic-
tion in each state and territory.
Nurses and midwives quite often move freely between the states and territories
seeking employment. Accordingly, when such a shift is made it is important that
differences in legislative provisions which are relevant to a nurse’s or midwife’s
employment are known and emphasised.
When a situation exists where two parliaments have power to make laws in rela-
tion to a particular area, it is not surprising that conflict may arise, as it has in the
past. When this occurs, section 109 of the Constitution provides that, to the extent
of the conflict, the Commonwealth law shall prevail. An example of where such an
argument was successfully raised is the conflict that arose between the Tasmanian
and Commonwealth governments in the controversial Tasmanian dams case (1983)1
when the Commonwealth prevailed and blocked the intention of the Tasmanian
Government to dam the Franklin River as part of its hydroelectric scheme for the
state. In that case, the High Court ruled the Commonwealth could prevent a state
authority from damaging the environment, even though the Commonwealth had
no express power in the Constitution to legislate on environmental protection. The
High Court decision was based predominantly on the Commonwealth’s ability to
give effect to international treaties.
A more recent example of conflict of powers between the Commonwealth and
the states was the High Court decision in the WorkChoices amendments case, handed
down on 14 November 2006.2
In that case, the states had challenged the Federal Government’s move to amend
the Commonwealth Workplace Relations Act 1996 by inserting what is widely
referred to as the WorkChoices amendments. The challenge was unsuccessful and the
7
WorkChoices amendments were affirmed by the High Court as constitutionally

valid.
The purpose and intent of the WorkChoices amendments was to give to the
Commonwealth the power to regulate the employment conditions of nearly 80
percent of the country’s workforce. In asserting such a power, the Commonwealth
relied on the corporations power as expressed in section 51(xx) of the Common-
wealth of Australia Constitution Act. That power allows the Commonwealth to make
laws relating to ‘foreign corporations, and trading or financial corporations formed
within the limits of the Commonwealth’. Such corporations are generally referred
to as ‘constitutional corporations’.
Further reference to the impact of the WorkChoices amendments on the indus-
trial regulation affecting the employment of health personnel, including nurses and
midwives, is to be found in Chapter 5.
It is always possible for a state to voluntarily hand over or refer one of its con-
stitutional powers to the Commonwealth — with or without conditions. For
example, early in 2007 the Commonwealth was pressing the states of New South
Wales, Queensland, South Australia and Victoria to refer to it the power to take
control of water management, particularly of the Murray–Darling Basin. If that was
to occur, it would undoubtedly be subject to the Commonwealth’s meeting certain
conditions and making significant payment to the states concerned.
How the law operates

Before turning to a consideration of how the law functions administratively, it is
necessary to divide the law into two distinct areas:
1) criminal law;
2) civil law.
It is essential that such a distinction is grasped from the very beginning, as oth-
erwise it makes it difficult to understand and follow the legal process. The question
that often arises is ‘What is the difference between civil and criminal law?’.
Criminal law
The best way to think of the criminal law is that it is essentially rules of behaviour,
backed by the sanction of punishment, which govern our conduct in the commu-
nity, having regard to other people and their property. Most of us are aware of the
more common rules of behaviour; for example, not taking another person’s property,
not assaulting another person, or not exceeding the speed limit. The power which
resides in the parliament enables it to determine the rules in conjunction with
acknowledged community views as to what constitutes accepted rules of behaviour
in the community. The parliament or, more correctly, the government in power,
then seeks to control our behaviour in the community by ensuring that we obey
the rules or face the sanction of punishment. This process is done by way of dele-
gated authority to a government body. In criminal law, the power to ensure that we
obey the rules of behaviour rests with the police force. Their task, in the first
instance, is to adopt a preventive role and, in the second instance, to ‘catch’ us when
8
we do break the rules. Having done that, the police must, via the relevant prosecut-
ing authority, then charge the person (the accused) with a breach of the rules (an
offence) and then the prosecution must prove that the accused committed the
offence as charged. The task of having to prove the offence as charged is known as
having the burden of proof or onus of proof. In satisfying the burden of proof, the
prosecution must prove the offence according to the criminal law standard of proof
— that is, beyond reasonable doubt. The task of proving an offence in accordance
with the standard of proof is done by producing evidence from a number of differ-
ent sources, for example:
• evidence of identification and relevant events from the victim (if possible);
• direct evidence of eyewitnesses who saw the offence being committed;
• medical or scientific evidence by experts;
• written or verbal admissions made by the accused.
The elements that must be established to prove that a person has committed a
criminal offence as charged are dealt with further on in this chapter.
A criminal charge will be dealt with in court, generally before a judge and jury
or before a magistrate sitting alone. More serious matters are dealt with by a judge
and jury, with the jury having the task of deciding the guilt or innocence of the
accused based on the evidence presented. The role of the judge in such trials is to
determine points of law and ultimately sentence the accused if he or she is found
guilty. In less serious criminal matters a magistrate will hear and determine the
matter without a jury and sentence the accused. The degree of the punishment will
depend on the nature and seriousness of the offence and can range from fines,
bonds, community service orders, periodic detention and home detention, to
imprisonment.
In addition to the normal type of criminal offences that most people think of
when they think of the criminal law — that is, assault, robbery, theft, fraud and so
on — there are other categories of criminal offences that individuals or companies
can commit. For example, companies and/or individuals can be prosecuted for
environmental, occupational health and safety, or corporate law offences.
Unless the accused is acquitted of the offence, the outcome of the criminal law
process is punishment. How does the above process differ from the civil law?
Civil law
The first thing to remember about the civil law is that, generally speaking, it has
nothing whatsoever to do with the police force and punishment. The best way to
think of the civil law is that it exists to enable us, individually and collectively,
to resolve the disputes and differences of a personal and property nature that
arise between us as members of the community and which we are unable or unwill-
ing to resolve ourselves. As a general rule in resolving such disputes, monetary
compensation (damages) will be sought by the person or party alleging personal
and/or property loss and damage. There are many divisions of the civil law; for
example, family, industrial, land and environment, and workers compensation, to
name just a few. There is also what is known in civil law as a common-law division
9
and into that division are allocated those matters whose origins are the well-estab-
lished common-law principles, such as contract law, negligence, defamation or
nuisance.
The person or party who initiates an action in the civil law is known as the
plaintiff and the person against whom the action is taken is known as the defendant.
There are exceptions to this; for example, in family law the person seeking a divorce
is the applicant and the spouse from whom the divorce is sought is the
respondent.
Similar to the requirement in criminal law, the person who brings an action in
one of the areas of the civil law (the plaintiff) bears the burden of proving the matter
in dispute. The significant difference here is that, although the plaintiff has that
onus, the standard of proof in civil matters is not the same as in criminal matters.
In a civil action the plaintiff has to prove his or her case only on the balance of
probabilities. What this means is that the evidence would disclose that, on balance,
the allegation made by the plaintiff, when considered with the evidence produced,
and in light of the law as currently applying, is the most probable cause of the
matter in dispute. Such a standard is clearly a much lower standard of proof than
that required in the criminal law.
When the plaintiff succeeds in proving the matter in dispute, the final and most
important issue to be determined by the court will be the amount of monetary
compensation (damages) to be awarded to the plaintiff. In most circumstances, the
outcome of the civil law process is compensation. There are some exceptions to this
and the civil law does provide for other remedies which may compensate the plain-
tiff. For example, the court could order that the defendant do a certain thing (spe-
cific performance) or that the defendant refrain from doing a certain thing (an
injunction). However, as a general rule, the awarding of a sum of money to the
plaintiff is seen as the most appropriate way of resolving the dispute between the
parties.
What is important to remember in the awarding of monetary compensation by
a court is that the court itself does not actually give the money awarded to the
plaintiff. The court hands down a judgment identifying the amount of compensa-
tion it determines the plaintiff is entitled to. The plaintiff must then recover that
money from the defendant. In most civil litigation that means recovering the money
from the defendant’s insurance company. However, if there is no relevant insurance
company standing behind the defendant and the defendant is impecunious then
the plaintiff may well be left without compensation. It is a salutary reminder of one
of the pitfalls of civil litigation.
Civil and criminal consequences from one action

Having taken pains to distinguish between the civil and criminal law processes, it
is now necessary to muddy the waters somewhat and point out that one incident
can give rise to both civil and criminal law proceedings. For example, while driving
your motor vehicle one day you wrongfully fail to give way to traffic on your
right at an intersection and, as a result, an accident occurs and a number of
people in the other vehicle are badly injured. The police will be called and you, as
the driver of the vehicle that caused the accident, will be charged with a number
10
of offences such as negligent driving and failing to give way. Your action and the
charge that follows is deemed to be a criminal act pursuant to the legislation
covering motor traffic offences in your state or territory, and in due course you
will be dealt with before the appropriate court. Assuming your guilt, you will then
be punished — you will probably be fined, your licence may be taken away or an
even more severe penalty may be imposed, depending on the culpability of your
action.
However, the persons that you have left badly damaged at the scene of the acci-
dent may not be so concerned (although they might well be) with whatever punish-
ment the court may wish to mete out to you as a result of your criminal act. They
could be more concerned with seeking some money from you in order to compen-
sate them for the pain, injury, loss and suffering that you have caused them as a
result of your negligent act — that is, your civil wrong. Those persons will com-
mence an action against you and they will allege that, on the basis of certain facts,
you drove your car negligently, as a result of which they suffered certain damage.
They will have to prove, on the balance of probabilities, the facts and damage they
are alleging. Assuming they are successful, they will be awarded a monetary amount
(damages) as compensation for their injuries and the subsequent losses that flow
from those injuries.
It will be seen from the above example that the major distinction to be drawn
between the civil and criminal act resides not in the nature of the wrongful act but in
the legal consequences that may follow it. If the wrongful act is capable of being fol-
lowed by what are called criminal proceedings, that means that it is regarded as a
crime (otherwise called an offence). If it is capable of being followed by civil proceed-
ings, that means that it is regarded as a civil wrong. If it is capable of being followed
by both, it is both a crime and a civil wrong. Civil and criminal proceedings are
(usually) easily distinguishable; the procedure is different, the outcome is different
and the terminology is different.3
Administrative machinery of the law

In its day-to-day operation the administration of the law is also divided along
criminal and civil lines. In addition, there is a hierarchical structure which
determines:
• what matters can be dealt with by particular courts;
• the powers that are vested in the different courts to deal with matters that
come before them;
• if a right of appeal exists from a particular court, how and in what
circumstances it is to operate.
All the states and territories have a similar basic hierarchical structure of the
administration of the law. The titles of the courts may vary from state to state or
territory, but not to any significant degree. The following summary of the roles of
the various courts should be read in conjunction with Figure 1.1, which illustrates
the hierarchical structure of courts in Australia.
11
High Court
State/territory Court
of Appeal Federal Court
of Australia
Federal
Magistrates
Court
State/territory
Supreme Court Family Court
District/County Courts
Licensing Courts
Local Courts or Children’s Courts
Magistrates’ Courts Coroners’ Courts
Figure 1.1 Hierarchical structure of courts in Australia
State and territory courts

LOCAL COURTS OR MAGISTRATES’ COURTS
The Local Courts Act 1982 (NSW) formally created the Local Courts, and changed
the title of Magistrates’ Courts from Courts of Petty Sessions to the Local Courts
of New South Wales. In the other states and territories, such courts continue to be
known as Magistrates’ Courts.
These courts are at the bottom of the legal hierarchy, but undoubtedly deal
with the greatest number of matters. They are presided over by magistrates, who
are legally trained and qualified. Even tiny country towns have sittings of the
Magistrates’ Courts and, in big cities, Magistrates’ Courts are located in many
suburbs.
In carrying out their task, magistrates sit without a jury and can deal with crimi-
nal matters and civil matters, including some family law matters. However, the
magistrates can deal only with those matters they have the power (jurisdiction) to
deal with. In general terms, magistrates can deal with civil matters where the amount
claimed by way of damages does not exceed the amount determined by the relevant
legislation. In most states and territories that amount is $60 000 with some provi-
sion for extending that in relation to money claims excluding personal injury cases.
12
In South Australia the jurisdictional limit is $80 000 and in the Northern Territory
it is $100 000. In criminal matters, magistrates deal with a wide range of criminal
offences. Not surprisingly, such offences constitute the bulk of crimes committed
in the community. The magistrates’ powers to punish are limited to the type of
offences with which they deal. One extension of their role in criminal matters is
that, in relation to serious criminal offences which they do not have the power to
deal with to finality, they do have the job of deciding if there is sufficient evidence
to establish a prima facie case against the accused; that is, based on first impressions
and from a consideration of the evidence, whether there is sufficient evidence to
show that a jury is likely to find the accused guilty. If they so decide, the accused
is then sent for trial before a higher court. Such proceedings are known as committal
proceedings. In some states now, that initial committal process has been significantly
truncated — instead of having an extensive preliminary hearing at the committal
stage, the prosecution simply tenders the statements from those persons they wish
to call at trial. Witnesses may or may not be called at that stage. Whatever procedure
is observed from state to state and territory, the magistrate is still required to for-
mally commit the accused to stand trial.
Magistrates also preside over a range of other courts; for example, Licensing
Courts, Coroners’ Courts, Children’s Courts and Fair Rent Tribunals. Of all of those
subsidiary courts, the Coroner’s Court is most relevant to nursing staff. The role of
the Coroner’s Court is dealt with in more detail in Chapter 9.
DISTRICT OR COUNTY COURTS

The next tier in the hierarchy of the court and judicial system is generally known
by the name of the District or County Court, depending on the state or territory
in which the court is located. In New South Wales, Queensland, South Australia
and Western Australia it is known as the District Court whereas in Victoria it is
called the County Court.
Because of their relatively small size or population, the Australian Capital
Territory, the Northern Territory and Tasmania do not have this intermediate
step of a District or County Court and rely on the Magistrates’ Courts and the
Supreme Court to cover the criminal and civil jurisdiction of the state or
territory.
Sittings of this court are presided over by a judge appointed from the legal pro-
fession and, in carrying out the task, the judge sits with a jury in all criminal matters,
but generally sits alone in civil matters. The role of the jury in criminal matters is
to decide on the guilt or innocence of the accused. The role of the judge in criminal
matters is to decide questions of law, direct the jury on relevant points of law that
arise, and punish the accused when, and if, he or she is convicted. Juries are not
routinely used in all civil matters. When they are, their role is to decide the issue
in dispute and, if decided in favour of the plaintiff, to generally determine the
amount of compensation to be awarded.
The role of the District or County Court judge is divided into civil and criminal
sections and, like the Magistrates’ Courts, there is a limit placed on the jurisdiction
of these courts to deal with such matters. While there are variations between the
states, in New South Wales, for example, the jurisdiction of the District Court to
13
deal with civil matters is limited to those matters where the amount claimed by
way of damages does not exceed $750 000 and is unlimited in relation to motor
vehicle injury claims. In criminal matters this court deals with all major criminal
offences with the exception of the capital offence of murder. In other states
and territories the civil and criminal jurisdiction of this court does vary. The power
of this court to punish extends to the penalties provided for the offences it has to
deal with. Judges of this court sit daily in the capital and large country cities and
travel ‘on circuit’ to smaller country towns for a week or two at regular intervals.
Judges of this court can also hear appeals from a decision of a magistrate in certain
matters.
STATE AND TERRITORY SUPREME COURTS

All states and territories have a Supreme Court. It is the highest or most senior
court in the judicial system within state and territory boundaries. Sittings of this
court are presided over by judges appointed from the legal profession and, in car-
rying out their task, they sit with a jury in the same circumstances as judges in the
District or County Courts. The role of this court is divided into civil and criminal
sections. This court has unlimited financial jurisdiction in civil matters and its
criminal role is generally confined, as a matter of practice, to dealing with the capital
offences of murder and serious sexual offences.
Like the District or County Court judges, judges of this court sit daily in the
capital cities. There are regular sittings of the court in major country towns, which
are presided over by the judges travelling ‘on circuit’ in the same way as the District
Court judges do.
One of the additional tasks of the Supreme Court is to hear appeals from the
lower courts and from decisions of a single judge of the Supreme Court. To do this
a Court of Appeal has been established within the Supreme Court and is presided
over by at least three judges of appeal. Once again the appellate role of the Supreme
Court is divided into civil and criminal sections.
Federal courts
FEDERAL MAGISTRATES COURT
The Federal Magistrates Court was created by the Commonwealth Parliament in
1999 by the enactment of the Federal Magistrates Act 1999. The court was created
in response to the need to alleviate the large workloads of the Federal Court and
the Family Court. As such, the Federal Magistrates Court shares concurrent jurisdic-
tion with the Federal Court and the Family Court over the following areas of law:
• family law and child support;
• administrative law;
• bankruptcy;
• unlawful discrimination;
• consumer protection and trade practices;
• privacy law;
• migration;
14
• copyright;
• industrial law;
• admiralty law.
The Federal Magistrates Court does not deal with criminal matters. Although the
court shares concurrent jurisdiction with the Federal Court and the Family Court,
its jurisdiction is limited in certain areas. For example, it does not have the power
to deal with adoption and applications concerning nullity or validity of marriage
under its family law jurisdiction.
Appeals from final decisions of federal magistrates are available as a right to appeal
to the Full Court of the Federal Court or the Family Court, depending on the
jurisdiction exercised by the court.
FAMILY COURT OF AUSTRALIA

This court was created by the Commonwealth Parliament in 1975 by the enactment
of the Family Law Act 1975 to deal with issues arising in relation to marriage, the
dissolution of marriage, children and property rights. Within the Family Court
structure, there is provision for an appeal court of three judges known as the Full
Court of the Family Court. That court hears and determines appeals from decisions
of single judges of the court and from the Federal Magistrates Court. There is also
an appeal right with leave from the Full Court of the Family Court to the High
Court.
FEDERAL COURT OF AUSTRALIA

This court was created by the Commonwealth Parliament in 1976 by the enactment
of the Federal Court of Australia Act 1976. The main reason for its creation was to
relieve the High Court of its workload that arises from some of the exclusive con-
stitutional powers of the Commonwealth; for example, trade practices, bankruptcy,
immigration and federal industrial issues. There is also an appeal right with leave
from the Federal Court to the High Court. Within the Federal Court structure,
there is provision for an appeal court of three judges known as the Full Court of
the Federal Court. That court hears and determines appeals from decisions of single
judges of the court and from the Federal Magistrates Court.
HIGH COURT OF AUSTRALIA

This court was created by the Commonwealth of Australia Constitution Act, which
has been previously referred to. The initial intent in creating the High Court was
that it would deal with constitutional disputes that arose between the Common-
wealth and the states and territories. In addition to its initiating role in dealing with
constitutional matters, the role of the High Court as a senior and final court of
appeal from state or territory Supreme Courts, as well as the Federal and Family
Courts of Australia, has increased considerably to embrace civil and criminal matters.
An appeal in such circumstances is not automatic, as the High Court must grant
leave to appeal and will only do so if the matter to be appealed constitutes a point
of law of general public importance.
15
For many years there was a right to seek leave to appeal from a decision of the
High Court to the Privy Council in the United Kingdom, but this was abolished
in 1975. The High Court of Australia is the final Court of Appeal in Australia on
all matters.
Other court systems and tribunals

The structure that has been outlined is the basic and permanent court structure that
exists in each of the states and territories as well as the Federal court system. Coex-
isting with those structures and feeding into them at various points, generally for
appeal purposes, is a wide range of courts and tribunals dealing with specific matters;
for example, industrial courts, workers compensation courts, land and environment
courts, anti-discrimination and administrative appeal tribunals as well as profes-
sional disciplinary tribunals.
The appeal process

Generally speaking, there is nothing to prevent a person or party, who so wishes,
from appealing against a decision of a magistrate to a higher court. Such an appeal
may be based on a number of points; for example, that the magistrate erred on a
point of law or that the punishment imposed was too severe or too lenient.
Likewise, the decision of a District Court judge or a single Supreme Court judge
may also be appealed against to the appeal court of the state or territory Supreme
Court on similar grounds. From there, an appeal may be made to the High Court
of Australia, subject of course to leave being granted by the High Court.
The doctrine of precedent

The development in England of the King’s law from the twelfth century onwards
and the establishment of common-law principles saw the early beginnings of the
doctrine of precedent. The King’s judges (knights) took to making notes of their
decisions in previously decided cases. When similar cases came before them, these
notes would then be used as a precedent; that is, as a persuasive guide to assist the
courts. Over the centuries this practice of convenience hardened and gradually
developed into a rule of law known as the doctrine of precedent. As long ago as the
early twentieth century, the concept of binding precedent had been established. It
means that the decision of a superior court on a legal issue will bind a lower court
when it is called upon to deal with the same legal issue in another matter. As an
example, a magistrate would be bound to follow the decision of a Supreme Court
judge who had handed down a decision on a particular legal issue if such an issue
came before the magistrate. Likewise a judge in a District or County Court is bound
by a decision of the Supreme Court of that judge’s state or territory in a case involv-
ing the same legal issue. A decision of the High Court of Australia is binding on
the Supreme Courts of the states and territories and on all courts below them. Apart
from any other considerations, the doctrine of precedent brings a degree of order
and certainty into what could otherwise be a chaotic situation for a potential litigant
or any person brought before the courts.
In applying the principle behind the doctrine of precedent, what is important is
that it is not the decision as a whole that is binding, but the major principle of law
16
enunciated by the decision. That major principle of law is known as the ratio deci-
dendi of the decision and has to be extracted by a careful reading and analysis of
the decision. In essence, the ratio decidendi of a case can be defined as the material
facts of the case plus the decision made on those facts.4 Any additional comments
made in the decision that do not form part of the ratio decidendi of the decision
are generally referred to as obiter dicta (things said in passing).
Apart from the binding precedent of court decisions within the individual state
or territory and Commonwealth hierarchical court structures, the decisions of
courts outside this structure that have English common-law origins can be used as
persuasive precedents in our courts. As an example, decisions of the courts of New
Zealand, Canada or the United States can be, and are, sometimes used in this
fashion.
As well, Australia is a signatory, ratified by Federal Parliament, to a wide range
of international legal treaties; for example, the International Declaration on the
Rights of the Child. Where such a treaty exists to which Australia is a signatory and
which is relevant to a particular area of the law before courts in Australia, reference
can be made to such international documents to the extent that it assists in deter-
mining the law in Australia. Reference to such an international document to which
Australia is a party would only be done to assist in interpreting the law as it cur-
rently applies in Australia, having regard to any federal, state or territory legislative
or common-law principles applying.
Who pays the bill?

Generally speaking, unless legal aid is granted, any person coming before the courts
in a criminal matter, or any person wishing to commence legal proceedings in a
civil matter, bears the burden of paying their own legal expenses. There are excep-
tions and also some expensive complications to that rule.
In criminal matters and family law matters each party must pay their own legal
bills and cannot be made, except in relatively unusual circumstances, to pay the
legal expenses of the other party. As far as the rest of the civil law is concerned, the
general principle is that the party who loses pays their own legal costs plus the costs
of the successful party in accordance with a scale of fees approved by the court.
Such a rule can have harsh consequences on the unsuccessful litigant and is an issue
that bears careful consideration when embarking on any litigation. Entitlement to
legal aid is means tested in all state, territory and Commonwealth matters and in
most situations this effectively precludes the great majority of middle-income
earners.
The next section will provide an understanding of the workings of criminal law.
Although most nurses and midwives do not usually come into contact with criminal
law in the course of their work, it is important to have a broad understanding of
this aspect of the law in order to differentiate it clearly from the civil and admin-
istrative jurisdictions, which form the substance of this text.
Criminal law
As a general rule, it is hoped that a detailed knowledge of the criminal law does not
arise for consideration in the day-to-day working activities of nurses and midwives.
17
The major area of interest for them, as far as their professional legal liability is
concerned, are those parts of the civil law which have been canvassed in detail in
this text. Nevertheless it is essential that every nurse and midwife should have a
basic knowledge of the criminal law and its operation. In addition, an ability to
distinguish between criminal law and civil law is necessary for a better understand-
ing of the different principles and administrative systems involved. The major dif-
ferences between the civil and criminal law processes and the ability for civil and
criminal law proceedings to arise out of the one action are explained earlier in this
chapter.
Development of the criminal law

As suggested above, the best way to think of the criminal law is essentially as a set
of rules of behaviour backed up by the sanction of punishment which governs our
conduct in the community having regard to other people and their property. These
rules of behaviour dictate that certain activities are unlawful and, as such, constitute
an offence against the state or territory and thus are deserving of punishment. The
types of activities that are deemed to be criminal offences vary widely from the rela-
tively minor offences created under motor traffic legislation, such as speeding or
failing to keep a proper lookout, to the more major offences; for example, murder,
sexual assault or armed robbery.
In determining certain activities as being contrary to established and acceptable
standards of behaviour in the community, and therefore criminal offences, parlia-
ments are influenced by prevailing community attitudes to the activity in question.
Community attitudes are a combination of social mores with moral and religious
influences as to what is right or wrong. As an example, homosexuality has a long
history of being deemed to be a criminal offence (and it still is in certain circum-
stances in all states and territories), largely because of prevailing community atti-
tudes to this activity. The views expressed from time to time by certain sections of
the community advocating the decriminalisation of the use of marijuana is another
example of an activity which is deemed to be a criminal offence deserving of pun-
ishment because of prevailing community attitudes.
As with the civil law, the Commonwealth and individual state and territory
parliaments have supplemented the common-law principles relating to the criminal
law by passing appropriate legislation. As an example, in New South Wales, motor
traffic offences, including drink driving, are created pursuant to the Road Transport
(Safety and Traffic Management) Act 1999 of that state. Offences that arise in relation
to the use, sale, supply and possession of drugs in New South Wales are created
pursuant to the Drug Misuse and Trafficking Act 1985 and the Crimes Act 1900 of
that state. The states of Queensland, Tasmania and Western Australia have incor-
porated their legislation in relation to the criminal law into comprehensive criminal
codes whereas the other states and territories supplement the common-law princi-
ples with legislation as required.
The various governments delegate the authority to uphold the law to the police
force of the state or territory. The major responsibility of any police force is to
prevent criminal activity within the community in which it operates and to appre-
hend those persons who do participate in such activity. If a person is apprehended
18
or arrested for a criminal offence, the duty of the police in the first instance is to
make inquiries and, depending on the result of those inquiries, then charge the
person with the offence he or she is suspected of having committed. According to
the nature and seriousness of the offence charged, the person charged (the accused)
must be brought before the appropriate court. The person concerned may plead
guilty to the charge, but if that person does not plead guilty, the police, on behalf
of the state or territory, have the task of proving that the accused person committed
the offence with which he or she is charged. A well-established presumption of the
common law is the presumption of innocence; that is, a person is presumed inno-
cent until proven guilty. The task of having to prove an accused person’s guilt is
known as having the burden of proof. In addition to having the burden of proving
the accused person’s guilt, the police must discharge that burden by producing
evidence to achieve a particular standard of proof. In criminal matters, the standard
of proof is beyond reasonable doubt; that is, there must be more than a reasonable
doubt as to the accused person’s presumed innocence. Alternatively, to look at it
from the point of view of any explanation put by the accused, all that the accused
has to do to rebut the police evidence is to raise a reasonable doubt as to his or
her guilt.
According to the nature and seriousness of the offence charged, the evidence will
be presented before a magistrate or a judge and jury, who will have the task, on the
basis of the evidence, of deciding the guilt or innocence of the accused. If the
accused is found guilty of the offence, or has pleaded guilty, he or she is then deemed
to have been convicted of the offence and will be punished by the magistrate or
judge. The punishment imposed will depend on such factors as the nature of the
offence, the maximum penalty imposed by the relevant legislation and the previous
good character or otherwise of the convicted person. The power of the courts to
punish people ranges from the imposition of a fine to long-term imprisonment.
In general, criminal offences can be divided for administrative purposes into
major and minor offences. Major criminal offences were originally termed felonies
and minor offences, misdemeanours. Such distinctions are now termed indictable
offences and summary offences respectively. Indictable offences are the more serious
offences against persons and property — for example, murder, armed robbery,
aggravated sexual assault — whereas summary offences are the less serious offences,
such as motor traffic offences, shoplifting or minor drug offences.
The elements of a crime

In order to establish that a person committed a criminal offence, two essential ele-
ments must be shown to exist:
1) the activity that constitutes the offence;
2) the intention to carry out the activity or a high degree of reckless indifference
as to the probable outcome of a particular activity.
The first element is often referred to as the actus reus of the offence; that is, the
activity that constitutes the offence. For example, in a charge of theft the ‘activity’
of the offence would be the dishonest appropriation of property belonging to
19
another person without that person’s consent, and in a charge of assault the ‘activity’
of the offence would be the application or threatened application of a blow or force
or the touching of another person without the other person’s consent.
The second element is often referred to as the mens rea of the offence; that is, the
guilty mind, where there is the intention to carry out the activity, or in some
instances a high degree of reckless indifference as to the probable outcome of a
particular activity. As a general rule, if the activity is carried out without the neces-
sary intention there can be no crime. Such a proposition is expressed in the legal
maxim: actus non facit reum nisi mens sit rea (activity does not produce a criminal
unless there is a guilty mind). In the charge of theft, the ‘intent’ element of the
offence would be the intention to permanently deprive the owner of his or her
property. Accordingly, the ‘activity’ and ‘intent’ elements of the offence of theft,
when expressed together, would be the dishonest appropriation of property belong-
ing to another without consent with the intention of permanently depriving that
person of the property.
In the charge of assault, the intent would be to inflict bodily harm on a person
or, in some situations, a reckless indifference as to the likelihood of harm occurring.
The following is an example of the element of reckless indifference. Two schoolboys,
both aged 15, pushed a paving stone over the parapet of a railway bridge onto an
approaching train. The paving stone crashed through the glass window of the train
driver’s cab, striking the guard and killing him. They were charged and subsequently
convicted of manslaughter. They appealed against the conviction but were unsuc-
cessful. The appeal court stated:
An accused was guilty of manslaughter if it were proved that he had
intentionally done an act which was unlawful and dangerous and that the
act had inadvertently caused death … In judging whether the act of the
accused was dangerous, the test was not whether the accused himself
recognised the act to be dangerous but whether sober and reasonable people
would recognise its danger.5
Criminal negligence and the significance of the element of intent

in healthcare settings
On occasions, incidents may occur in hospitals or healthcare centres that, at first
glance, suggest a criminal offence has been committed. For example, if a patient
died as a result of the administration of a wrong drug it might be thought that
whoever administered the drug was guilty of murder or manslaughter. However, as
far as the criminal law is concerned, the most significant factor to be established
would be the presence or otherwise of any intent to cause harm or a high degree
of recklessness or inadvertence such as to amount to criminal negligence. If the
wrong drug were administered intentionally, with the deliberate intent to kill
the patient, this would amount to murder. If the drug were given believing it to be
the right drug but with an attitude or degree of recklessness as to the amount to be
given or the contraindications to be observed in the administration of the drug and
the patient died as a result, this may amount to the offence of manslaughter on the
basis of criminal negligence. In most situations in hospitals where mistakes are
20
made, what is usually present is a degree of carelessness or error of judgment such

as to amount to civil negligence. For a nurse or midwife to be found guilty of
criminal negligence as a result of their activities at work, there has to be a much
higher degree of negligence, which would demonstrate an attitude of recklessness
or inadvertence to the possibility of harm occurring.
It is essential to distinguish between civil negligence and criminal negligence.
One of the earliest cases that clearly made that distinction concerned the actions of
a doctor in attending a woman during delivery. The English case is reported as R v
Bateman.6 The relevant facts are set out below.
Dr Bateman attended a woman at home during labour. The labour was prolonged
and the child’s presentation was unusual and difficult. The doctor attempted to turn
the child by the procedure known as ‘version’. In doing so, he used considerable
force over a period of an hour and delivered the child, which was dead. In delivering
the placenta he also removed, by mistake, a portion of the patient’s uterus. After
the delivery the doctor left the patient at home. Five days later the patient was so
ill the doctor then transferred her to hospital where she died two days later. The
post-mortem examination revealed the following:
… the bladder was found to be ruptured, the colon was crushed against the
sacral promontory, there was a rupture of the rectum and the uterus was
almost entirely gone.7
Dr Bateman was charged with manslaughter on the grounds of criminal negli-
gence in that he had:
• caused the internal ruptures in performing the operation of version;
• removed part of the uterus along with the placenta;
• delayed sending the patient to hospital.
The doctor was found guilty of manslaughter on the grounds of criminal negli-
gence. He appealed and his conviction was quashed. In handing down their decision
the judges of the Court of Criminal Appeal stated, in part:
To support an indictment for manslaughter the prosecution must prove the
matters necessary to establish civil liability (except pecuniary loss) and, in
addition, must satisfy the jury that the negligence or incompetence of the
accused went beyond a mere matter of compensation and showed such
disregard for the life and safety of others as to amount to a crime against
the State and conduct deserving of punishment … there is a difference in
kind between negligence which gives a right to compensation and the
negligence which is a crime.8
The test established here is of general application in Australian courts and
has been applied and approved in other English cases when considering the
issue of criminal negligence (Andrews v DPP; Akerele v R).9 It would be a rare case
where a nurse or midwife, or any other health personnel for that matter, showed
such a disregard for the life and safety of others as to constitute criminal
negligence.
21
As an extreme example of such a situation, suppose that a patient, Mr Smith,

was ordered to have a number of units of blood following major surgery. The
appropriate cross-matching had been done and the cross-match slip was received in
the ward. When one of Mr Smith’s units was complete, Miss Jones, a registered
nurse, went out to the refrigerator where cross-matched blood for all of the patients
in the hospital was kept. Miss Jones picked up the first bag of blood she saw and
did not bother to check it against any slip or with any other person. She came back
to the ward and then proceeded to administer it to Mr Smith. The blood was
incompatible; Mr Smith nearly died and was extremely ill for many months. When
questioned about her actions, Miss Jones admitted that she was aware of the dangers
of incompatible blood transfusions and the need for checking but thought that on
this one occasion it would be ‘all right’, and that nothing would happen. She also
said she was sorry about what had happened and had not really meant to hurt Mr
Smith.
Extreme though this example may be, it illustrates the degree of negligence which
must be present to constitute the requisite intent in a charge of criminal negligence
occasioning grievous bodily harm. In New South Wales such an offence, if proved,
carries a maximum penalty of ten years imprisonment. The other states and terri-
tories have similar provisions. If Mr Smith had died as a result of the incorrect blood
transfusion, Miss Jones might well have faced a charge of manslaughter on the basis
of the facts given.
The types of conduct that can amount to criminal negligence are infinitely vari-
able and may or may not cause the death of another person. Where the conduct of
a person causes the death of another and gives rise to a charge of criminal negligence,
such criminal negligence is generally referred to as involuntary manslaughter.
It is worthwhile at this point to briefly distinguish between murder and man-
slaughter. Murder, or homicide as it is often known, is the killing of another person
based predominantly on the intention to kill. Homicide is regarded as lawful if it
is committed in the execution or advancement of justice such as a police officer
shooting a person who prevents the police officer from carrying out his or her duty
in certain circumstances.
Manslaughter is where a person is killed by another based not necessarily on
having the intention to kill, but as a result of an unlawful or recklessly negligent
act. Manslaughter is a crime which covers a diversity of unlawful killings which are
not considered murder, generally because of the absence of a deliberate intent to
kill. Obviously a charge of manslaughter could arise from a criminally negligent act
if the patient died as a result. Manslaughter has also been described in a decision
of the High Court of Australia (R v Timbu Kolian) thus:
I think it is correct to say that by the common law today, an unintended,
wholly unexpected and unlikely killing is manslaughter if, but only if, it be
the result of some act which is both unlawful and in the circumstances
dangerous, or is the result of some conduct amounting to reckless
negligence.10
Manslaughter is generally divided into two types: voluntary and involuntary
manslaughter.
22
Voluntary manslaughter is where the accused generally intended to kill but his
or her liability for what would otherwise be a charge of murder is reduced because
of such mitigating factors as provocation or self-defence.
Involuntary manslaughter is where the accused killed as a result of some unlawful
and dangerous act, or a criminally negligent act, or where the accused intended to
inflict bodily harm but did not intend to kill.
From these examples, it can be seen that the types of behaviours which fall within
the criminal law usually fall (thankfully) outside the scope of practice of most nurses
and midwives. However, it is the element of either intent or ‘reckless negligence’
which renders a harmful act criminal, and it is important to bear this in mind when
thinking through ethical dilemmas.
Endnotes
1) Commonwealth v Tasmania (1983) 158 CLR 5) DPP v Newbury and Jones (1976) 2 All ER
1; 46 ALR 625; 57 ALJR 450, commonly 365.
referred to as the Tasmanian dams case. 6) R v Bateman (1925) All ER 45.
2) New South Wales v Commonwealth [2006] 7) Ibid, at 47.
HCA 52 (14 November 2006), commonly
referred to as the WorkChoices amendments 8) Ibid, at 49, 51.
case. 9) Andrews v DPP (1937) AC 576; Akerele v R
3) Williams G, Learning the Law, 10th ed, (1943) AC 255.
Stevens, London, 1979, p 2. 10) R v Timbu Kolian (1969) ALR 143, per
4) Ibid, p 62. Windeyer J at 151.
23
Chapter 2
The relationship between law
and ethics
Perhaps the best way to provide an explanation of the relationship between law and
ethics is to use a personal example. If you were told you needed to have an opera-
tion there would be a number of concerns you would wish to have addressed. You
would want to be informed adequately about the nature and consequences of the
surgery so that you would be able to make a wise choice. You would want to know
that the surgeon and anaesthetist are competent, that the nursing staff are compe-
tent and will care for you in a compassionate manner, and that the private informa-
tion you choose to share with the nursing and medical staff will be treated
confidentially and not discussed inappropriately. For each of these concerns to be
addressed properly the nursing and medical staff who care for you will be required
to behave in what would probably be described as a professional manner — and,
in the majority of cases, this is indeed how nursing and medical staff do behave.
All of the above professional behaviours are ethical behaviours — they comply
with established ethical principles and theories. Nurses, midwives and doctors nor-
mally behave in these ways because they wish to give the best possible care they can
give to their patients. However, in Australia all of these behaviours are also legal
requirements. That is to say, these behaviours are so fundamental to people’s expec-
tations of healthcare professionals that they have either been incorporated into the
common law or enshrined in legislation. This need to provide for orderly and good
conduct through the development of legal systems was discussed in Chapter 1. The
major difference between these professional expectations being legal, as opposed to
ethical, is that from a legal perspective, if these expectations are breached in some
way, there will usually be some form of sanction or adverse consequence for the
healthcare professional concerned.
However, sometimes the alliance between legal and ethical requirements is not
as clear as in the above example. Not all laws are necessarily ethical — for historical
examples, consider the laws governing slavery in America, the laws allowing persecu-
tion of the Jews in Nazi Germany, or the anti-apartheid laws in South Africa. Many
people, believing strongly that these laws were unethical, did not comply with them
and as a consequence put themselves at considerable personal risk. These are obvi-
ously extreme examples, but there are other scenarios where two or more possible
25
courses of action are available, each of which may be perfectly legal, but over which
there may be disagreement as to the ‘best’ (for these purposes most ethical) course
of action. Such situations may offer a range of alternative solutions, none of which
will offer an ideal outcome. Consequently these will create ethical quandaries or
dilemmas for the people involved.
However, it is important to recognise at this stage that there is more to making
ethical decisions than simply adopting a moral stance, for example, according to
strong religious or moral beliefs. Ethical decision-making is a complex and rigorous
process, whereas our morality is what propels us to adopt a particular stance based
on a particular set of beliefs, many of which have been inculcated into us since
childhood. Johnstone, who argues that there is no philosophically significant dif-
ference between ethics and morality, nevertheless points out that:
… while our ‘ordinary moral apparatus’ may motivate us and guide us to
behave ethically as people, it is often quite inadequate to the task of guiding
us to deal safely and effectively with the many complex ethical issues that
arise in nursing and healthcare contexts.1
Ethics not only requires a consideration of morality but also many other factors,
as will be seen later in this chapter.
Because of the human and complex nature of healthcare, ethical dilemmas are
not uncommon in clinical practice and have received much attention in both aca-
demic and media circles over the past three decades. The study of ethical dilemmas
in healthcare is often called ‘bioethics’. There are many excellent and comprehensive
texts available on the subject, a number of which are used as references in this
chapter. Some of these ethical dilemmas have been major issues for society as a
whole to ponder, such as resource allocation, euthanasia and gene technology, but
other, more individual clinical dilemmas, such as telling patients the truth, chal-
lenging doctors about treatment choices and prioritisation of care, have also been
reported by nurses and midwives as causing considerable angst.2
Making decisions about any of these ethical dilemmas is complex. Usually there
are no simple answers; otherwise there would be no dilemma. However, it is possible
to become skilled at ethical decision-making by developing and refining those
decision-making processes and by being aware of the motives and values with which
they are undertaken. Justice Michael Kirby made the observation that ‘good law
and good ethics must be grounded in good data’.3 In analysing ethical dilemmas,
the legal parameters of the situation are inevitably important aspects of the data,
but are unlikely to be the only considerations. It is far beyond the scope of this
chapter to provide a sound grounding in ethical decision-making or reasoning, but
the chapter will set out some basic ideas about ethics and provide a range of sources,
some practical, some more theoretical, to enable the reader to research the issues in
more depth. To begin, the next section will attempt to define ethics and differentiate
it from other concepts with which it is commonly confused.
Ethics: what it is
Kerridge, Lowe and Stewart state that ‘ethics is the study of what we ought to
do. Or if we restate this in the way of the Ancient Greeks, ethics asks each of us
26
2 • The relationship between law and ethics
“How should I live?” ’.4 Words like ‘should’ and ‘ought’ are often used in ethical
discussion, but although they are helpful as a starting point, they are sometimes
limiting, as such terms can also be applied to school rules and table manners.
Kerridge et al. go on to provide a helpful amplification to this introduction by
listing five general statements that can be applied to systems of ethics. These are
as follows:
1) Ethics is broadly concerned with human flourishing and wellbeing and
the construction and maintenance of a peaceful society in which all may
benefit.
2) Ethics is prescriptive — it refers more to what we should do than what we
actually do.
3) Ethics is a systematic approach that uses reason to define what ought or ought
not to be done, either as action or process.
4) Ethics embodies ideas that are universalisable — so ethics is relevant to all
individuals; and if we develop moral concepts, principles and action-guides,
they should apply equitably to all persons equally.
5) Ethics is of overriding importance — that is, ethics is of greater significance
than the law, politics or self-interest (although in practice ethics is often
overridden by considerations of law, politics or self-interest).5
It is this systematic approach to addressing problems that is probably the most

important aspect of ethics for nurses and midwives who are commencing on a path
of ethical inquiry and study. Herring notes that:
… ethical approaches to medicine (sic) must be practical. They must
develop ways of reaching decisions about complex issues which can be used
by medical (sic) professionals …While therefore it might be unreasonable
to turn to medical ethicists to produce the ‘correct’ answer, it may be
reasonable to expect assistance in thinking through the issues with
sensitivity, logic and clear-headedness.6
Perhaps it would be fair to say that ethical decision-making is as much about
asking questions as it is about finding answers. Clearly, the process of making careful
ethical decisions takes time, yet often nurses and midwives are confronted with
ethical dilemmas in the course of their working day and may have little opportunity
to consider their immediate response. That is why the academic study of ethics is
so helpful to nurses and midwives, as it enables them to explore in advance issues
that might arise regularly and to develop at least some rudimentary decision-making
skills. However, junior clinicians are always advised to discuss ethical dilemmas with
more senior, experienced colleagues or other clinicians who may have more expertise
in this area.
Singer, in his seminal text Practical Ethics, makes the point that ethics is funda-
mentally a practical concern.7 It is concerned with making decisions and taking (or
not taking) actions. Johnstone offers the idea of ‘the task of ethics’ which she
says is ‘to find a way to motivate moral behaviour, to settle disagreements and con-
troversies between people, and to generally bind people together in a peaceable
27
community’.8 Both undergraduate and some specialist postgraduate programs now

contain the study of ethics within their curricula, which provide nurses with oppor-
tunities to hone and practise these skills away from the immediacy of the clinical
environment.
Ethics: what it is not

Charlesworth points out a major problem — that ethical discussions often take
place:
… between people with widely differing interpretations of what the terms
of the discussion mean, how the facts may be interpreted or described, and
also with differing ethical stances.9
For this reason it is helpful to differentiate ethics from a range of other issues
with which it is often confused. This enables nurses and midwives to look at what
other value systems and ideas they might bring to any ethical decision-making
process and be explicit about identifying them. In differentiating ethics, it also needs
to be recognised that all of these factors are likely to be involved in and inform
ethical decision-making. Although the famous bioethicist Peter Singer10 was prob-
ably one of the first to embrace this differentiation approach, a number of other
authors on health law and ethics have adopted it in recent times.11 These other issues
are listed below and then an example is used to explore each issue.
• Ethics is not a professional code of ethics nor a set of guidelines that, if
followed, will lead to correct behaviour.
• Ethics is not professional etiquette or opinion.
• Ethics is not hospital policy or medical authority.
• Ethics is not religion or morality.
• Ethics is not law.
• Ethics is not gut feeling or intuition.
• Ethics is not empirical data.
• Ethics is not public opinion or consensus.
• Ethics is not following the orders of a supervisor or manager.12
An example of an ethical problem

Consider the following case study.
Mr X, an 89-year-old man, has been admitted in extreme pain with urinary
retention. He has prostate cancer with multiple secondaries throughout his abdomen.
He is middle European in origin and has limited English. His distraught wife and
two sons are with him — both sons speak fluent English. Effective analgesia has
been provided and he is sleeping when the surgeon arrives to see him.
The surgeon speaks with the sons and explains that the situation is terminal and
that only palliative surgical measures will be undertaken to relieve his symptoms.
The sons request that their father not be given his diagnosis. They explain that
culturally it is the role of the family to be the decision-makers during illness and
28
that their father would not expect to be involved. Furthermore, they all believe it
would be detrimental to their father’s wellbeing for him to be given a terminal
diagnosis.
The surgeon reluctantly accedes to this request because the sons are so adamant
about their cultural practices. He simply tells Mr X that they will insert a supra-
pubic catheter later that day ‘to bypass your blockage and sort out your pain’.
However, when you are caring for Mr X during that day, he constantly asks you,
in his limited English, whether or not he is dying. How would you deal with this
situation?
HOW MIGHT THE NURSE RESPOND?

Clearly this is a difficult situation, and requires skilful and careful ethical decision-
making. It may well be that you have already had an immediate reaction to
this scenario — a gut feeling as to what ought to be done. You may have strong
religious or moral convictions, and believe that your only option would be to
answer Mr X truthfully that he is dying. You may already have found yourself taking
‘sides’ in this situation, believing that the consensus /cultural view taken by the
surgeon and the sons was ‘wrong’. Conversely, you may feel that the surgeon is in
charge; he has made the decision and professional etiquette demands that you do not
challenge him.
The law here is clear. Mr X has a legal right to be informed of all material risks
relating to his treatment options (see Rogers v Whitaker).13 Such a right would
require him to be aware of his diagnosis in order to evaluate the treatment options
before him. The hospital policy, particularly in relation to consent for surgical
treatment, would mirror the law and would undoubtedly state that Mr X must be
informed of his diagnosis and treatment options. Your immediate response
might be to wish to comply with the law and hospital policy in disregard of
the family’s wishes and advise Mr X of his diagnosis. Only ‘therapeutic privilege’
would permit the surgeon not to inform Mr X fully about his surgery, and
this limited defence can be exercised if either the patient expressly states that he
or she does not wish to know (in which case it would be the patient’s choice),
or if the surgeon believed the information would be likely to cause serious
physical or psychological harm to the patient.14 The surgeon has conceded ‘reluc-
tantly’ to the family’s request and would probably consider the scenario does
stretch the ambit of therapeutic privilege. However, a decision not to advise the
patient may cause significant ethical distress for you, even if you decide to follow
the orders of your manager and not provide information to the patient. Thus it can
be seen that clinical decisions may be made for a range of reasons, not all of
which may conform to the healthcare professional’s sense of what is ethically
appropriate.15
If you were to consult your Nursing and Midwifery Board of Australia (NMBA)
Code of Ethics for Nurses in Australia, you might feel that it offered conflicting
advice.16 For example, Value Statement 3 states: ‘Nurses value the diversity of
people’. The explanatory statements in relation to both patients and communities
accompanying that value statement (inter alia) advise that:
29
Valuing the diversity of people requires nurses to appreciate how different

cultural backgrounds and languages may influence both the provision and
receipt of nursing and health care.
…
2. Person (health consumer): Valuing the diversity of people involves
acknowledging and responding to each person as a unique individual, and
to their culture. It requires nurses to develop cultural knowledge and
awareness and greater responsiveness to the languages spoken enabling them
to better understand and respond effectively to the cultural and
communication needs of people in their care, their families and
communities during a health care encounter.
…
4. Community: Nurses recognise and accept the diversity of people
constituting the Australian community and that different groups may live
their lives in ways informed by different cultural values, beliefs, practices
and experiences. Nurses seek to eliminate disparities in nursing and health
care, especially among population groups in society that are considered most
vulnerable, including Aboriginal and Torres Strait Islander populations;
asylum seekers, refugees and migrants; and ethnic, religious, national and
racial minorities. Nurses work to reduce the adverse effects power
imbalances and prejudicial attitudes and practices have on social and
institutional justice, and on the just and humane provision and delivery of
nursing and health care. In particular, they work to ensure people are not
disadvantaged or harmed because of their appearance, language, culture,
religion, age, sexuality, national or social origin, economic or political status,
physical or mental disability, health status, or any other characteristics that
may be used by others to reduce the equal enjoyment or exercise of the
right to health.
However, Value Statement 5 of the Code of Ethics states: ‘Nurses value informed
decision-making’. The explanatory statements in relation to this value statement
include advice that:
Nurses value people’s interests in making free and informed decisions.
This includes people having the opportunity to verify the meaning and
implication of information being given to them when making decisions
about their nursing and health care. Nurses also recognise that making
decisions is sometimes constrained by circumstances beyond individual
control and that there may be circumstances where informed decision
making cannot always be fully realised.
…
2. Person (health consumer): Nurses value the legal and moral right of people,
including children, to participate whenever possible in decision making
concerning their nursing and health care and treatment, and assist them to
30
determine their care on the basis of informed decision making. This may
involve ensuring people who do not speak English have access to a qualified
health interpreter. Nurses recognise and respect the rights of people to
engage in shared decision making when consenting to care and treatment.
Nurses also value the contribution made by persons whose decision making
may be restricted because of incapacity, disability or other factors, including
legal constraints. Nurses are knowledgeable about such circumstances and in
facilitating the role of family members, partners, friends and others in
contributing to decision-making processes.
You might wonder how you can reconcile the respect for cultural practices with
the right to information, particularly when both of these values are considered to
be ethical behaviours expected of a nurse. This contradiction does not negate the
value of a code of ethics, even though it clearly demonstrates why a code of ethics
cannot be a manual for ethical behaviour. Rather, the code will assist you to identify
the ethical issues involved in your dilemma so that you can then address them and,
if necessary, make a choice between them.
You will remember that Michael Kirby stated that ‘good ethics must be grounded
in good data’ and all the responses and pieces of information discussed above will
form part of your ethical decision-making process.17 However, having all the empiri-
cal data before you will not ultimately provide you with the reason to make this
decision. For example, there may be pieces of information you choose to reject —
possibly you may decide that the family will suffer immeasurably if the father is
told the truth, despite the fact that you discover he really wants to know. But you
still need to recognise that the family members are present in your thought processes
and acknowledge the influence they will have on your decision. When you make
an ethical decision, it will be necessary to justify both ethical actions in terms of
ethical purposes and also the ethical purposes themselves.18 Thus the questions you
ask and the discussions you have with the key participants in this scenario will
determine the quality of the decision you eventually make.
What resources are available to assist nurses and midwives to address

such dilemmas?
As already noted, all of the above pieces of information discussed as part of the
nurse’s immediate response will be critical to the nurse’s decision-making process
and will inform that decision. The nurse needs to know what the law says, and what
the hospital policy states. The nurse will be assisted greatly by being cognisant of
the value statements in the NMBA Code of Ethics and any other codes of ethics or
conduct which might bear upon nurses’ practice (for example, some health depart-
ments also have codes of ethics and/or conduct). The nurse’s own religious or moral
convictions may influence the way he or she feels about whatever decision is finally
made, even if the outcome is that the nurse opts not to be involved in the manage-
ment of this problem. However, in order to obtain ‘good data’ and to ‘justify the
decision’ the nurse does need to ask more questions and have further discussions
with all parties involved in the situation. Furthermore, even a basic understanding
of ethical theories and principles will assist the nurse to make better decisions.
31
However, people don’t usually make ethical decisions based on theories alone.
Some very useful practical skills which are essential for ethical decision-making are
listening skills, communication skills, and the ability to trust ourselves and to value
our own experiences, although not to the exclusion of those of our peers. We also
need to be aware of the influence of power relationships on our ethical decisions.
As nurses, we often imagine that we are powerless in clinical situations, but fre-
quently it is the patient who is the least powerful participant.19 It is important
to recognise that the danger of privileging such an important process as ethical
decision-making to the sole domain of healthcare professionals is that there is
the risk that the process can disempower the very group it set out to assist.
There are numerous texts available which describe ethical theories and principles
and offer models for ethical decision-making. Rather than provide a comprehensive
account of these, the purpose of this chapter is to assist nurses to understand the
relationship between law and ethics. Thus, the remainder of it will only highlight
major ethical theories, principles and models for ethical decision-making, and rec-
ommend useful resources for further reading.
Major ethical theories

The study of ethics, of determining ‘what ought to be done’, has been around since
the time of the Ancient Greeks and their ways of examining ethical behaviour
provide the foundations for the two main branches of study of ethical theory —
deontology and teleology. Other theories have developed in more recent times, such
as feminist moral theories, and these are considered by some ethicists to be more
appropriate to the caring professions. Both Johnstone and Kerridge et al. provide
readable discussions on the different schools of thought in relation to these theories
and their relevance to healthcare. All of these theories in their most extreme applica-
tion can be controversial, and Johnstone recounts a number of concerns that have
been expressed about traditional moral theories and principles.20 However, one of
the most useful aspects of learning about ethical theories for ethical decision-making
is that nurses are able to identify the sources of the differing arguments being put
forward by key players — it helps nurses to work out ‘where (ethically) a person is
coming from’.
Deontological or intrinsicalist theories

Deontological theories are sometimes known as ‘intrinsicalist’ theories because they
propose the view that actions are intrinsically right or wrong in themselves, and
thus the way to determine what one ought to do is guided by the action itself.
For example, if a nurse believed that telling the truth was intrinsically right, then
that nurse’s view as to the correct action in our scenario would be determined
according to that belief. Similarly, if a nurse believed that taking a person’s life was
intrinsically wrong, then that nurse’s position in any debate about euthanasia would
be clear.
Kerridge et al. point out:
… the value of deontological theory is that it reminds us of the importance
of rationality in moral judgment and of moral standards, independent of
32
consequences. It has tremendous appeal for those who seek certainties in life
and for institutions (such as the church or government) who have a need to
bind together groups of people under some identifiable moral code.21
Indeed, deontological positions are more likely to be held by people with strong
religious beliefs.
Teleological or consequentialist theories

Teleological theories are sometimes known as ‘consequentialist’ theories because an
action is not necessarily considered to be morally right or wrong in and of itself,
but rather is judged to be morally appropriate because of the consequences its posi-
tion produces. The best-known branch of the teleological theories is known as utili-
tarianism, which is popularly described as an attempt to obtain ‘the greatest good
for the greatest number’. Taken to extremes, of course these theories can have bizarre
outcomes. Nurses will find that such theories are often invoked in discussions about
healthcare resource allocation. However, they usually arrive at an individual level
for healthcare professionals when faced with a particular patient who would be
disadvantaged by resource restrictions.
Kerridge et al. describe the value of consequentialism as reminding us ‘that the
consequences of our actions have moral significance and must be taken into account
in the evaluation of actions and situations’. They go on to point out that:
Consequentialism at least attempts to develop a rational process of moral
reasoning that enables the resolution of moral conflict, although in the
end it probably does not succeed. Finally, consequentialism attributes moral
worth to specific situations or contexts in a manner that has immediate
intuitive and clinical appeal, even for those who profess the central
importance of rules.22
Modern feminist ethics

Modern feminist ethics has come to the fore with the rise of the feminist movement
over the past three decades. Fundamentally modern feminist ethicists criticise tra-
ditional ethical theories for disregarding both the contribution of women to ethical
debate and the needs of women in ethical debate, particularly in relation to ethics
of care and ethics of interpersonal relationships. Feminist ethicists (inter alia) have
challenged why such moral attributes as reason, which has been revered by philoso-
phers over the centuries, should be given supremacy over such attributes as empathy,
compassion, sympathy or caring in moral decision-making and thinking. Kerridge
et al. helpfully identify a number of characteristics in feminist philosophies, namely
that they:
a) reject the overemphasis on individual rights, autonomy and rationality in
bioethics (Parsons, 1986);
b) deny the requirement for value-neutral philosophies or abstract ethical
principles (Harding, 1991);
c) reject the adversarial nature of moral conflict as a means for resolving ethical
issues in clinical practice;
33
d) stress the significance of values such as empathy, interdependence and

caring, and the importance all members of society have to each other; and
e) emphasise the importance of context and the relevance of politics and
power to understanding ethics and healthcare.23
Other ethical theories and concepts include rights-based theories, virtue ethics,
discourse ethics and narrative ethics, all of which are accessibly covered to varying
depths in either Johnstone or Kerridge et al. Kerridge et al. provide an excellent
critique of nursing and nursing ethics but overall reject the notion of a specific
ethics of nursing in favour of incorporating that which is best in the nursing ethics
discourse into the wider healthcare discourse.24 Johnstone, on the other hand, argues
that nursing ethics is ‘inevitable’. She says that:
So long as nurses interact with, and enter into professional caring
relationships with other people, they will not be able to avoid or sidestep
the ‘distinctively nursing’ experience of deciding and acting morally while in
these relationships. It is in this respect, then, that nursing ethics can be said
to be inevitable.25
Most bioethics texts recognise the inadequacy of ethical theories in their applica-
tion to practical bioethics. However, these inconsistencies and differences probably
reflect the real difficulties nurses have in ethical debate in clinical practice, where
many competing imperatives will shape the dilemma, as seen in the case study
above. Notwithstanding these criticisms of ethical theories, using theories, concepts
and principles to inform our ethical thinking is of great importance if we are to
improve our ethical practice as clinicians. Johnstone argues that one of the major
moral problems nurses (and other healthcare professionals) encounter is that of
‘moral unpreparedness’. She argues that such moral unpreparedness is analogous to
and as unacceptable as clinical unpreparedness; for example, putting a clinically
unprepared nurse in charge of a ventilated patient in intensive care.26
Perhaps more recognisable to clinicians than ethical theories are the four ethical
principles identified by Beauchamp and Childress. These are widely accepted as
valuable in bioethical decision-making and are discussed below.27
The four major ethical principles

The notion of a principle is that it is a rule or standard to be applied in any given
situation. There is a sense in a principle that it is the right thing to do, that it will
guide one’s behaviour. The four ethical principles commonly used in bioethics are
autonomy, beneficence, non-maleficence and justice. Just as with ethical theories,
these principles are not without controversy and, as will be seen in the ensuing
discussion, can also be in competition with one another in any given situation. But
their usefulness as a means of examining ethical dilemmas is apparent from their
popularity in models of bioethical decision-making.
AUTONOMY
Autonomy is commonly described as: the right to self-determination, the ability to
control what happens to us and how we behave. This exercise of our own free will
34
is only acceptable if it does not adversely affect the rights of others. It is an important
ethical principle as it involves respect for individuals and their personal space. It is
also a principle which is reflected in a number of areas of health law, particularly
in relation to one’s right to consent to treatment and to receive information about
one’s treatment. However, this ethical principle is not upheld in law in every situ-
ation. For example, people do not have the right to exercise autonomy in relation
to voluntary euthanasia, as it is illegal, nor do people have the right to be assisted
to die at any time they may choose.
Nurses and midwives need to remember that, in order to exercise autonomy, it
is often necessary to be assertive. It is not always easy for a patient to be assertive
when they are ‘at the mercy’ of the nursing and medical staff, particularly if their
exercise of autonomy would bring them into confrontation with those staff. Neither
has it always been easy for nurses to be assertive, schooled as they have been in the
past in the need for absolute obedience, particularly to the doctor.28 Furthermore,
the principle of autonomy is, as seen in the case study above, culturally a Western
concept. Some other cultures do not think primarily in terms of autonomy and
individualism, but rather in terms of interdependence and community, and yet the
laws in Australia usually uphold the principle of autonomy.29
BENEFICENCE
Beneficence is often described as the principle of ‘above all, do good’. This desire
to do good is undoubtedly what motivates most healthcare practitioners. However,
it is valuable to recognise that there are times when people’s idea of what constitutes
‘doing good’ may go against the wishes of an individual; for example, when a patient
is terminally ill and may be prepared to die, but the doctors and nurses cannot bear
to cease treatment. One of the important questions to ask in situations relating to
beneficence is: Whose good are we trying to serve? Kerridge et al. point out that if
a patient’s autonomy is overruled on grounds of beneficence, this is known as
paternalism.30 Beneficence and non-maleficence are often two sides of the same
coin — but often the difficulty in practice is to work out where one ends and the
other begins. For example, if a nurse is debriding burns or performing some other
painful dressing for a patient, the nurse may well be causing the patient some dis-
comfort (at least) which could be construed as ‘doing harm’ and yet the nurse’s
motives for undertaking the dressing or debridement are to ‘do good’. In such a
situation, it is clear that the nurse must debride the wound, yet the principles could
be construed as being in conflict with one another.
NON-MALEFICENCE
Non-maleficence is the principle of ‘above all, do no harm’. This is a very strong
principle in healthcare and forms the basis of nurses’ and midwives’ duty to take
care in the way in which they look after their patients. It can also be recognised in
the ‘duty of care’ which is one of the elements of the tort of negligence. This obliga-
tion to do no harm is argued to override the principle of beneficence (‘above all,
do good’). Beauchamp and Childress argue that our duty to do no harm is greater
than our duty to do good, particularly where our duty to do good may put others
or ourselves at risk.31
35
JUSTICE
Justice has two meanings in ethics — justice as fairness and justice in terms of an
equal distribution of burdens and benefits. Justice as fairness also has two interpreta-
tions: that of treating people equally and that of ‘getting one’s just desserts’ —
deserving what happened.
The principle of ‘justice as fairness’ implies and expects a level of impartiality and
neutrality in dealings with others. However, treating people equally does not neces-
sarily equate with treating people in the same way. Patients are not the same in
terms of their social, educational and cultural backgrounds and nurses may need to
adopt widely differing strategies to achieve equal treatment for two patients. For
example, providing adequate information about a laparoscopic cholecystectomy for
an elderly woman from a non-English speaking background may require very dif-
ferent strategies than providing the same information to a university-educated,
English-speaking 45-year-old man. With these considerations in mind, justice as
fairness is an important principle as it is the basis for the requirement to avoid
discrimination against people who are different for whatever reason.
The second meaning of justice as an equal distribution of burdens and benefits
is sometimes known as distributive justice. This principle is often used to address
questions relating to resource allocation. The central tenet is that whoever we may
be in society, the benefits and burdens would be equally shared between us. It is
clear to see that this is not the case in modern society. This concept creates huge
ethical difficulties for healthcare practitioners when they are required to apply the
principle in practice. Questions arise such as: Which patients should receive treat-
ment? If we close our mental institutions, how do we fund care in the community
adequately? Such questions pose real dilemmas for healthcare practitioners, who
have traditionally tended to operate in terms of individual patient relationships.
Models for ethical decision-making in healthcare

With these theories and principles in mind, a number of authors have suggested
models to assist in ethical decision-making, some of which are more complex than
others.32 All adopt a problem-oriented approach to ethical decision-making. All
involve a number of steps which include assessment, information gathering, plan-
ning or goal-setting (including weighing options) and implementing and evaluating
the chosen plan. Kerridge et al. suggest that the legal parameters of the problem
should be identified, as these will often dictate the course of action.33 However, it
may be that the issue is not so clear-cut, in which case a decision-making model
may assist the individual to work through the ethical dilemma. All of the above
authors provide useful decision-making models, but one of the more comprehensive
ones is provided by Kerridge et al. and is reproduced in Figure 2.1 with their
permission.
If this model were used to address the dilemma in the case study, it would clearly
provide some useful pointers as to how to deal with the issue.
Clearly state the problem

How this problem is framed will depend upon what value systems the framer holds
in the first place. But in anyone’s language there seems to be a discrepancy between
36
A MODEL FOR ETHICAL DECISION-MAKING

Clearly state the problem:
Consider the problem within its context and attempt to distinguish between ethical problems and other
medical, social, cultural, linguistic and legal issues. Explore the meaning of value-laden terms; for example,
futility, quality of life.
Get the facts:
Find out as much as you can about the problem through history, examination and relevant investigations.
Take the time to listen to the patient’s narrative and understand their personal and cultural biography. Are
there necessary facts that you do not have? If so, search for them.
Consider the fundamental ethical principles:
Autonomy: what is the patient’s approach to the problem?
Beneficence: what benefits can be obtained for the patient?
Non-maleficence: what are the risks and how can they be avoided?
Justice: how are the interests of different parties to be balanced?
Confidentiality/privacy: what information is private and does confidentiality need to be limited or breached?
Veracity: has the patient and their family been honestly informed and is there any reason the patient cannot
know the truth?
Consider how the problem would look from another perspective or using another theory:
Who are the relevant stakeholders? What is their interest? What do they have to lose?
How salient are their interests? How powerful are they? How legitimate are they? How urgent are they?
How would the problem look from an alternative ethical position? For example, consequentialist, rights-
based, virtue-based, feminist, communitarian, care-based.
Identify ethical conflicts:
Explain why the conflicts occur and how they might be resolved.
Consider the law:
Identify relevant legal concepts and laws and how they might guide management.
Examine the relationship between the clinical–ethical decision and the law.
Make the ethical decision:
Clearly state the clinical–ethical decision and justify it; for example:
identify ethically viable options
make the decision and justify it; for example, by specifying how guiding principles were balanced and
why
take responsibility for the decision
communicate the decision and assist relevant stakeholders to determine an action plan
document the decision
evaluate the decision.
Figure 2.1 Ethical decision-making model

Source: Reproduced from Kerridge I, Lowe M and McPhee J, Ethics and Law for the Health Professions
2e © The Federation Press, 2005 Sydney Australia, pp 84–5
what Mr X has been told about his condition and what he has a legal right to be
told. Furthermore, what he has been told is not complete and he seems to be asking
for more information. However, it will be important to ascertain linguistically that
this is exactly what he is asking, as he has limited English and may be requiring a
different outcome, such as reassurance, or even denial. We also know that the
37
surgeon is not happy about the situation but has ‘reluctantly’ agreed to the family’s
request on cultural grounds. However, little conversation has taken place between
Mr X and the surgeon. It will also be necessary to factor in the impact on the family
if a decision were made to inform Mr X of his diagnosis in contravention of the
family’s wishes. This problem raises cultural and legal issues as well as ethical issues
and there are a number of people already involved in the case study — Mr X, his
wife and sons, the surgeon, and you, at the very least.
Get the facts

There is much work to be done in relation to fact-finding in the case study. Further
discussions are required with the surgeon and the family and with the other health-
care professionals involved in caring for Mr X, even including community carers,
such as his general practitioner or community nurse. This is a critical time in the
lives of Mr X and his family, and the hospital staff who are currently caring for him
are probably the healthcare professionals who know him least well. Discussion is
especially required with Mr X to ascertain what information he really wants to know.
It may be advisable to use an interpreter rather than a family member to assist the
surgeon and you in having these conversations with Mr X. However, at this stage
you will need to be particularly aware that you and the interpreter are trying to find
out all the facts, not institute solutions. Each conversation may lead to more infor-
mation being required. It is most important to have all the information you need
before you make any determinations about what ought to be done.
Consider the fundamental ethical principles

Autonomy: what is the patient’s approach to the problem?
Beneficence: what benefits can be obtained for the patient?
Non-maleficence: what are the risks and how can they be avoided?
Justice: how are the interests of different parties to be balanced?
Confidentiality/privacy: what information is private and does confidentiality need
to be limited or breached?
Veracity: has the patient and their family been honestly informed and is there any
reason the patient cannot know the truth?
Your consideration of these principles will depend on what facts and information
you have found. However, it seems clear that Mr X’s wishes in regard to this situ-
ation must be balanced against the family’s desire to ‘do good’ according to their
culture and both your and the surgeon’s desire to ‘do no harm’.
The question of veracity, particularly from the patient’s perspective, is highly
significant here.
Consider how the problem would look from another perspective or using
another theory
Questions about the key stakeholders are critical here, particularly as they will
undoubtedly become clearer as further information emerges. You will also need to
consider questions of power if your preferred ethical decision is in conflict with that
38
of other members of the healthcare team, especially if you are not in a position of
authority. Rights-based ethics may move the decision in favour of advising Mr X,
but conversely, if you determine that his relationship with his family is more impor-
tant than his need to know his prognosis, an ethic of care may prevail.
Identify ethical conflicts

At first glance there do appear to be ethical conflicts between the need to enable
Mr X to exercise autonomy by providing the information he seems to be seeking
and the desire to ‘do good’ by respecting the cultural norms of him and his family.
However, the need to ‘do no harm’ through avoiding any disharmony with the
family dynamics is also critical. Other conflicts may also arise as you discover more
information. On the other hand, it may transpire that when you have gathered all
the information, these conflicts will resolve.
Consider the law

As already stated, the law is fairly clear in this situation. One question which has
framed this ethical dilemma in the first place is whether or not the legal require-
ments for information giving and consent can be overridden either because of
therapeutic privilege or cultural norms.
Make the ethical decision

Clearly state the clinical–ethical decision and justify it; for example:
• identify ethically viable options;
• specify how guiding principles were balanced and why;
• take responsibility for the decision;
• communicate the decision and assist relevant stakeholders to determine an
action plan;
• document the decision.
Evaluate the decision

Whatever decision you finally make will be determined by the facts you discover
in your decision-making process and the value you place on the differing pieces of
information. Before you implement the decision, step once again through your
justification, ensuring that your rationale is considered and robust. It may be that
there is no consensus as to the best way forward, in which case a decision will have
to be made and any differing views ought to be documented. If your preferred
decision is the one to be implemented, then it is critical that you take responsibility
for the decision and manage the consequences of the decision, following through
on both positive and negative outcomes. Any difficult decision will not produce
perfect outcomes and it is vital that the impact of the decision is handled with care
and compassion. Evaluation of the process as well as the outcome is essential, oth-
erwise you will have learned little from the experience.
The opportunity to reflect on our most difficult dilemmas and the choices we
made about them is always to be welcomed. However, it is important to recognise
that real reflection, as opposed to post-hoc justification, can sometimes be painful.
39
We may honestly feel on reflection that we could have managed the situation better
or made better decisions. But clinical–ethical decision-making is often made ‘on
the run’ and, with the best will in the world, we will not always get it right. It is
important to welcome the evaluation as a learning opportunity and to recognise the
potential for improvement.
CONCLUSION
Law and ethics are not the same, although ethical decision-making will always
involve a consideration of the law. In addition, good laws should arguably also be
ethical laws, but as seen from the ethical theories and principles presented above,
there may be disagreement about their morality depending on which ethical theory
or principle is being promulgated. However, there are a number of desirable health-
care practices, such as the requirements for confidentiality and consent, respect for
persons, and care, both in terms of compassion and rigour, which are both ethically
sound and legally required. Freckleton and Petersen point out that ‘the practice of
good ethics should not only bolster professionalism but also protect patients’ rights
and reduce the need for legal intervention into healthcare’.34 In addition, when the
courts are presented with issues they have not previously dealt with, such as with-
drawal of life support (Airedale NHS Trust v Bland), or the harvesting of sperma-
tozoa from a posthumous donor (R v Human Fertilisation and Embryology Authority,
ex parte Blood), they draw on ethical principles and theories to assist them in their
deliberations.35 This will become clear in some of the cases discussed later in this
book, and the reader might find it interesting to examine the case law with a view
to ascertaining which principles were being upheld.
It is clear from this brief chapter that all ethical theories and principles are not
without difficulty in relation to their application to practice. However, the use of
an ethical decision-making model can provide a useful structure to address the
complex and often difficult dilemmas nurses and midwives meet in clinical practice.
Yet it is also important for nurses and midwives to recognise that, even after they
believe they have reached an appropriate ethical decision, the power differentials in
healthcare may mean that their decision is not the decision of choice. This can be
extremely frustrating for nurses and midwives and has been the subject of much
discussion, particularly in relation to recruitment and retention.
Endnotes
Note: All links given below were last accessed on Churchill Livingstone, Edinburgh, 2002;
20 January 2012. Hancock K, Clayton J, Parker S, Walder S,
1) Johnstone M-J, Bioethics: A Nursing Butow P, Carrick S, Currow D, Ghersi D,
Perspective, 5th ed, Churchill Livingstone, Glare P, Hagerty R and Tattersall M,
Sydney, 2008, p 28. ‘Truth-telling in discussing prognosis in
2) Bach V, Ploeg J and Black M, ‘Nursing roles advanced life-limiting illnesses: A systematic
in end-of-life decision making in critical care review’, (2007) Palliative Medicine
settings’, (2009) Western Journal of Nursing 21:507–17.
Research 31 (4) 496–512; Chiarella E M, 3) Kirby M, ‘Bioethics and democracy — A
The Legal and Professional Status of Nursing, fundamental question’ in Charlesworth M,
40
Life, Death, Genes and Ethics — The 1989 17) Kirby, 1989, op. cit., p 3.
Boyer Lectures, ABC Books, Sydney, 1989, p 3. 18) Husted J H and Husted G L, Ethical
4) Kerridge I, Lowe M and Stewart C, Ethics Decision-making in Nursing and Health
and Law for the Health Professions, 3rd ed, Care: The Symphonological Approach,
Federation Press, Sydney, 2009, p 7. Springer Publishing Co., New York, 2008,
5) Ibid, pp 1–2. p 41.
6) Herring J, Medical Law and Ethics, Oxford 19) Ibid, pp 42–43.
University Press, Oxford, 2006, p 18. 20) Johnstone, 2008, op. cit., p 54 et seq.
7) Singer P, Practical Ethics, Cambridge 21) Kerridge et al., 2009, op. cit., p 12.
University Press, Cambridge, 2011. 22) Kerridge et al., 2009, op. cit., p 16.
8) Johnstone, op. cit., 2008, p 49. 23) Kerridge et al., 2009, op. cit., p 23.
9) Charlesworth M, Life, Death, Genes and 24) Ibid, pp 184–8.
Ethics — The 1989 Boyer Lectures, ABC 25) Johnstone, 2008, op. cit., p 34.
Books, Sydney, 1989, p 23.
26) Ibid, pp 112–13.
10) Singer, 2011, op. cit.
27) Beauchamp T L and Childress J F, Principles
11) Kerridge et al., 2009, op. cit.; Johnstone, of Bioethics, 5th ed, Oxford University Press,
2008, op. cit. New York, 1996.
12) Kerridge I, McPhee J, Jordens C and Clark
28) Chiarella, 2002, op. cit. See specifically Ch
G, ‘Moral frameworks in healthcare: An
6 and the discussion of the nurse as the
introduction to ethics’ in Freckleton I and
doctor’s handmaiden.
Petersen K (eds), Disputes and Dilemmas in
Health Law, Federation Press, Sydney, 2006, 29) For an excellent discussion on transcultural
p 18. See particularly Johnstone, 2008, op. ethics see Johnstone, 2008, op. cit., Ch 4,
cit., at pp 38–40 for an interesting pp 88 et seq.
discussion on codes of ethics. 30) Kerridge et al., 2009, op. cit., p 88.
13) Rogers v Whitaker (1992) 109 ALR 625. 31) Beauchamp and Childress, 1996,
14) Consent to Treatment Policy for the Western op. cit.
Australian Health System, 2nd ed, Western 32) Kerridge et al., 2009, op. cit.; Johnstone,
Australia Department of Health, Office of 2008, op. cit.; Seedhouse D, Values-based
Safety and Quality in Health Care, Perth, Decision-making for the Caring Professions,
2009, p 16. Wiley, London, 2005.
15) See Johnstone, 2008, op. cit., pp 36–38. 33) Kerridge et al., 2009, op. cit.,
16) Code of Ethics for Nurses in Australia, pp 94–95.
Nursing and Midwifery Board of Australia 34) Freckleton I and Petersen K (eds),
(NMBA). Note there is a separate Code of Controversies in Health Law, Federation
Ethics for Midwives in Australia, also Press, Sydney, 1999, p xxvii.
published by the NMBA, http://www. 35) Airedale NHS Trust v Bland [1993] 2 WLR
nursingmidwiferyboard.gov.au/Codes- 316; R v Human Fertilisation and
Guidelines-Statements/Codes-Guidelines. Embryology Authority, ex parte Blood [1997]
aspx#codeofethics. 2 WLR 806.
41
Chapter 3
Professional negligence and
vicarious liability
Negligence as part of the law of civil wrongs

As explained in Chapter 1, an understanding of how the law operates requires, in
the first instance, that the distinction be made between the criminal and civil law.
Once that has been done, it is then necessary to further divide the civil law into a
number of different areas; for example, family law, workers compensation, industrial
law and so on.
One of the most important areas of the civil law is known as the law of civil
wrongs, sometimes known as the law of torts. There are a number of civil wrongs or
torts, the most widely known being negligence. Two other examples of well-known
civil wrongs are nuisance and defamation. The legal principles that apply in these
areas are essentially the well-established common-law principles that have been
developed by the courts over the centuries. In some instances, however, parliament
has supplemented the common-law principles with legislation. As an example, the
initial common-law principles relating to civil defamation have now been either
supplemented or replaced by the passing of specific legislation (generally known as
the Defamation Act) in each state or territory.
This chapter is concerned with examining the law in relation to professional neg-
ligence, or medical negligence as it is often referred to. This area of the law permits
patients, the relatives of patients, or other persons, to bring claims against hospitals,
health authorities, medical practitioners, nurses, midwives and other healthcare pro-
fessionals seeking financial compensation as a result of an alleged negligent act that
has caused damage and financial loss, as well as pain and suffering.
In a civil negligence claim, the party or parties bringing the claim for compensa-
tion are known as the plaintiffs and the party or parties defending the claim are
known as defendants. The plaintiff bears the onus of proof and must establish his
or her claim according to the standard of proof for civil law matters which is on
the balance of probabilities.
Legislative changes affecting the law in relation to civil negligence
and professional negligence in particular
In 2002, significant legislative changes were introduced in all states and territories
that have impacted on the law applicable to civil negligence and professional neg-
ligence in particular.
43
The impetus for such wide-ranging legislative change in this area of the law arose
predominantly as a result of increasing judicial and community concern at the way
in which the law of negligence and consequent financial liability to pay compensa-
tion was being extended resulting in public liability insurance becoming economi-
cally unsustainable. As well, increasing insurance premiums for medical practitioners
in the healthcare sector was reflected in the high cost of professional indemnity
insurance, particularly for rural GPs providing obstetric services including the
refusal of obstetricians to provide community-based services. These concerns were
brought to a head by a crisis in the insurance industry in 2001. When that occurred,
a review of insurance premiums and coverage by public liability insurers saw sig-
nificant increases such that many professionals and community organisations were
unable to obtain public liability insurance or could not afford the new premiums
set by the insurance companies.
As a consequence of the above, both the Federal and state and territory govern-
ments considered legislative reform was required. The basis of much of that legisla-
tive reform was the report of the Panel of Eminent Persons set up by the Federal
Government in 2002. That panel became known as the Ipp Committee after the
Chair of the Panel, Justice David Ipp, a Justice of the New South Wales Court of
Appeal. The task of the Ipp Committee was to undertake a principles-based review
of the law of negligence. In undertaking that review, the Ipp Committee was asked,
amongst other matters, to:
… develop and evaluate options for a requirement that the standard of care
in professional negligence matters (including medical negligence) accords
with the generally accepted practice of the relevant profession at the time of
the negligent act or omission …1
As a consequence of the recommendations arising from the Final Report of the Ipp
Committee, as well as legislative initiatives undertaken by the states and territories,
the law in relation to civil negligence and professional negligence in particular has
been amended. The problem that has been created, however, is that the legislative
changes that have been made by the states and territories arising from the Ipp Report
and its recommendations have not been uniform. The states and territories enacted
different recommendations of the report as well as introducing a number of their own
legislative initiatives. The end result is somewhat of a legal minefield and it is impor-
tant to be aware of the differences depending on the state or territory in which one is
practising and how the particular provisions of that state or territory impact on con-
siderations of professional negligence, particularly for healthcare professionals.
Notwithstanding those comments, the legislative changes in this area of the law
have not altered the fundamental principles that must be established where a person
wishes to sue another for monetary compensation, alleging negligence. What has
changed in some respects is the legal test to be applied in establishing those prin-
ciples and, in relation to aspects of monetary compensation being claimed, limits
have been placed on amounts that may be awarded by the courts.
The title of the legislation introduced in each state and territory relevant to con-
siderations of professional negligence following the release of the Ipp Report is set
out in Table 3.1.
44
3 • Professional negligence and vicarious liability
Table 3.1
Legislation relevant to a claim alleging professional negligence
Australian Capital Territory Civil Law (Wrongs) Act 2002
New South Wales Civil Liability Act 2002
Northern Territory Personal Injuries (Liabilities and Damages) Act 2003
Queensland Civil Liability Act 2003
South Australia Civil Liability Act 1936
Tasmania Civil Liability Act 2002
Victoria Wrongs Act 1958
Western Australia Civil Liability Act 2002
As stated earlier, not all states and territories incorporated all of the recommenda-
tions of the Ipp Report in their legislative changes in the exact same terms and, as
a result, differences of approach do apply between them. Only the more significant
differences in relation to professional negligence are referred to in this text.
Professional negligence in a healthcare context

In a healthcare context, professional negligence is often referred to as medical neg-
ligence. Whatever expression is used, the legal principles are the same.
Attempts to define negligence (and therefore professional negligence) concisely
have resulted in a number of propositions being put forward over the years, most
of which, like the definitions of law itself, are generally deficient in one way or
another. However, the definition that most simply explains the common-law
approach to civil negligence is as follows:
The categories of negligence are never closed. The cardinal principle of
liability is that the party complained of should owe to the party
complaining a duty to take care and that the party complaining should be
able to prove that he [sic] has suffered damage as a consequence of a breach
of that duty.2
In bringing a claim, the plaintiff must establish, according to the civil standard
of proof, the legal principles that constitute the allegation being made supporting
the plaintiff ’s claim of negligence against the defendant.
In such an action, the plaintiff must establish, on the balance of probabilities,
the following four principles:
1) That the defendant owed the plaintiff a duty of care. It follows, if a duty of
care is shown to exist, there must be a standard of care inherent in the duty.
Therefore, the standard of care expected of the defendant in the incident being
complained about must also be established.
2) That the defendant’s conduct on the occasion in question fell below the
standard expected. If that is established, then the defendant is in breach of his
or her duty of care to the plaintiff.
45
3) That, as a result of the defendant’s breach of the duty of care owed to the
plaintiff, the plaintiff suffered damage. This principle is often referred to as the
principle of causation. That is, the defendant’s breach of the duty of care
caused the plaintiff’s loss and damage. If the plaintiff suffers no damage, no
compensation can be awarded. Equally, if the damage being complained about
did not arise as a consequence or direct result of the defendant’s negligent act,
no compensation can be awarded.
4) That the loss and damage the plaintiff is complaining about is a reasonably
foreseeable consequence of the defendant’s negligent act — otherwise, once
again, the plaintiff cannot be awarded compensation. This principle is often
expressed by saying that the loss and damage complained of should not be too
remote from the negligent act.
In establishing the above principles, the plaintiff must prove all of them according
to the civil standard of proof. If the plaintiff fails to prove one of them, the plaintiff
fails completely in the action against the defendant.
It is now necessary to examine carefully each of the principles identified above,
with particular reference to nurses and midwives acting in their professional
capacity.
Negligence: Principle 1 — that the defendant owed the plaintiff a duty

of care
DUTY OF CARE AS A NURSE OR MIDWIFE
It has long been determined by the courts that, as far as your professional activities
are concerned, a duty of care is owed to patients, fellow employees and potentially
other persons. To understand the application of that principle, one should refer to
the historic decision given in 1932 by the English House of Lords (then a superior
court of appeal whose decisions bound Australian courts). That decision laid down
the now well-established principles concerning the existence and scope of one’s duty
of care in an action alleging civil negligence.3
The case for determination by the House of Lords concerned an action that arose
when the plaintiff had consumed a bottle of ginger beer that contained the decom-
posed remains of a snail and she became ill. She brought an action against the
manufacturer alleging, among other issues, that the manufacturer owed her a
duty of care in the manufacture of its product. Today, the existence of such a
duty would not even be put in issue and the authority for that proposition is the
principle laid down in the case under discussion. The significance of the decision
can therefore be readily appreciated as a milestone in the development of the law
in this area.
In handing down the historic decision, the judges stated that the manufacturer
did owe a duty of care to all the potential consumers of its product, who, of course,
included the plaintiff. In determining the extent and the existence of a duty of care
generally, they stated that each of us owed a duty of care, in law, to our neighbour.
In response to the question, ‘Who, in law, is my neighbour?’, the answer given in
the decision of the court was:
46
… persons who are so closely and directly affected by my act that I ought
reasonably to have had them in my contemplation as being likely to be
damaged when I set out to do the acts or omissions which are now being
complained of.4
Obviously in the course of undertaking work as a nurse or midwife, one’s profes-
sional actions closely and directly affect patients, fellow employees and potentially
other persons so much so that it can reasonably be foreseen that, if a nurse or
midwife undertakes a professional task and does it badly, or fails to do a task
expected of the nurse or midwife in the course of his or her work, one or all of
those categories of people may be injured. Therefore, those people are the ‘neigh-
bours in law’ of the nurse or midwife and a duty of care clearly exists in relation to
them.
A good example of how the scope or extent of one’s duty of care can extend
beyond the patient or fellow employee to a third party is the decision of the New
South Wales Supreme Court in the case known as BT (as administratrix of the estate
of the late AT) v Oei.5 In that case, the defendant, Dr Oei, was a general practitioner.
AT was his patient. In late 1991, Dr Oei first saw AT and treated him for a flu-like
illness. In early 1992, AT was again seen by Dr Oei as his earlier symptoms had
not settled. Tests taken at that time revealed a urinary tract infection and hepatitis.
Dr Oei did ask AT at that time about his sexual activities and whether he was an
intravenous drug user. AT denied any history of drug taking and referred to ‘casual
sexual exploits’ as a possible source of hepatitis B. At that time, Dr Oei gave AT a
number of pamphlets about hepatitis B and safe sex practices but, despite the evi-
dence of hepatitis, Dr Oei did not recommend that AT have a HIV test. As a result
AT was unaware of his HIV status. AT subsequently formed a sexual relationship
with BT. They had unprotected sex on a number of occasions and AT passed the
virus to BT who subsequently became ill. BT sued Dr Oei for professional negli-
gence. BT claimed that Dr Oei, who owed a duty of care to AT as his patient,
should have suspected a HIV infection and advised AT to have a HIV test when
he first presented. BT argued, and the court agreed that, if Dr Oei had done so,
AT’s HIV status would have been detected early enough for him to have practised
safe sex with BT and, as a consequence, BT would not have contracted the HIV
infection.
In coming to the conclusion that it did, the court had regard to the obligation
imposed on medical practitioners under the Public Health Act 1991 (NSW). Under
that Act, a doctor who reasonably believes a patient may have a HIV infection is
required to inform that patient of the danger that he or she poses to others, includ-
ing sexual partners in particular, and the measures the patient should take to protect
others from infection.
It is important to emphasise that the determination of a duty of care embraces
‘acts or omissions which are now being complained of ’. Liability can arise as much
by a failure to do a particular act as it can by doing it and doing it badly.
WHAT IS THE POSITION OUTSIDE OF WORK?
At common law, the primary principle that determines whether or not a duty of
care is owed to a person or class of persons, and liability arises, is the recognition
47
of ‘reasonable foreseeability of harm’ occurring as a result of a person’s particular

activities.
However, the recommendations arising from the Ipp Report have resulted in
legislative changes in some of the states and territories that have placed limitations
on categories of activities where it is stated no liability will arise.
The legislation introduced by each of the states and territories following the
release of the Ipp Report does not attempt to precisely define ‘duty of care’ in the
context of civil negligence. What the states and territories have done is to enshrine
in their respective legislation the general common-law principle of reasonable fore-
seeability of harm which is relevant to determining whether a duty of care arises in
relation to any activity or undertaking. For example, section 5B of the Civil Liability
Act 2002 (NSW) states:
1) A person is not negligent in failing to take precautions against a risk of

harm unless:
a) the risk was foreseeable (that is, it is a risk of which the person knew
or ought to have known), and
b) the risk was not insignificant, and
c) in the circumstances, a reasonable person in the person’s position
would have taken those precautions.
2) In determining whether a reasonable person would have taken
precautions against a risk of harm, the court is to consider the following
(amongst other relevant things):
a) the probability that harm would occur if care were not taken,
b) the likely seriousness of the harm,
c) the burden of taking precautions to avoid the risk of harm,
d) the social utility of the activity that creates the risk of harm.
With the exception of the Northern Territory, all of the states as well as the
Australian Capital Territory have incorporated a similar statement of general prin-
ciples in their respective legislation. See Civil Law (Wrongs) Act 2002 (ACT) ss 42
and 43; Civil Liability Act 2003 (Qld) s 9; Civil Liability Act 1936 (SA) s 36; Civil
Liability Act 2002 (Tas) s 11; Wrongs Act 1958 (Vic) s 48; Civil Liability Act 2002
(WA) s 5B.
In a majority of the states and territories, the legislative changes identify a cate-
gory of activities where, it is said, liability will not automatically arise. Such provi-
sions, where applicable, intentionally negate the notion of a duty of care arising in
relation to the nominated categories of activity.
The first category where liability is conditional are those defendants engaged in
activities that may be considered socially valuable. These include:
• public authorities, particularly those which provide or manage services for the
general benefit of the community, or exercise regulatory functions. See Civil
Law (Wrongs) Act 2002 (ACT) ss 109–113; Civil Liability Act 2002 (NSW)
ss 41–45; Civil Liability Act 2003 (Qld) ss 34–37; Civil Liability Act 1936
(SA) s 42; Civil Liability Act 2002 (Tas) ss 38, 40, 42 and 47; Wrongs Act
1958 (Vic) ss 79, 83 and 84; Civil Liability Act 2002 (WA) ss 50–52 regarding
48
road authorities specifically. No similar provisions appear in the relevant

legislation of the Northern Territory.
• ‘good Samaritans’ who provide assistance in emergencies. See Civil Law
(Wrongs) Act 2002 (ACT) s 5; Civil Liability Act 2002 (NSW) ss 56–57;
Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 8; Civil Liability
Act 2003 (Qld) ss 26–27; Civil Liability Act 1936 (SA) s 74; Wrongs Act 1958
(Vic) s 31B; Civil Liability Act 2002 (WA) ss 5AB and 5AD. No similar
provision is made in the relevant Tasmanian legislation. The obligation
imposed on healthcare professionals including nurses and midwives as ‘good
Samaritans’ is discussed in more detail further in this chapter.
• volunteers involved in carrying out work for a community organisation. See
Civil Law (Wrongs) Act 2002 (ACT) ss 6–11; Civil Liability Act 2002 (NSW)
ss 59–66; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 7; Civil
Liability Act 2003 (Qld) ss 39–44; Civil Liability Act 2002 (Tas) ss 44–49;
Wrongs Act 1958 (Vic) ss 34–41. No similar provisions appear in the relevant
legislation of South Australia and Western Australia.
The second category where liability may not arise is where the plaintiff is engaged
in particular activities where it is considered the plaintiff should bear the risks
associated with that activity. The intention of such provisions is to preclude or limit
the ability of a person bringing a claim for compensation alleging negligence where
the person is engaged in inherently and/or obviously risky behaviours or activities,
which include:
• activities that involve inherent and/or obvious risks;
• certain recreational activities referred to as a ‘dangerous recreational activity’;
• consumption of alcohol, or other drugs;
• criminal activity, including where the defendant acts in self-defence.
As an example in relation to the above, section 5K of the Civil Liability Act 2002
(NSW) defines ‘dangerous recreational activity’ as recreational activity that involves
a significant risk of physical harm and ‘recreational activity’ includes:
a) any sport (whether or not the sport is an organised activity), and

b) any pursuit or activity engaged in for enjoyment, relaxation or
leisure, and
c) any pursuit or activity engaged in at a place (such as a beach, park or
other public open space) where people ordinarily engage in sport or in
any pursuit or activity for enjoyment, relaxation or leisure.
Taken together, the effect of all of the above provisions is that, outside one’s
professional activities as a nurse or midwife, whether a duty of care is owed would
depend, in the first instance, on considerations relating to the facts and circum-
stances of the activity giving rise to the allegation of negligence and whether that
activity meets the test to determine whether a duty of care arises. To do so, it is
necessary to consider whether the facts and circumstances of the activity complained
49
of fell into one of the above categories where the relevant civil liability legislation
now provides that liability generally does not arise.
DETERMINING THE STANDARD OF CARE FOR HEALTHCARE

PROFESSIONALS GENERALLY
Numerous court cases involve allegations of negligence involving healthcare profes-
sionals, particularly medical practitioners. Given the major role that medical prac-
titioners play in diagnosing, delivering and determining the healthcare to be given
to a patient, it is not surprising that of the professional negligence cases dealt with
by the courts, the great majority of them involve allegations of negligence against
members of the medical profession. As a consequence, the case law developed by
the courts, particularly the High Court, in determining the standard of care expected
in the delivery of health services is made up of cases concerning the actions of a
medical practitioner in specific clinical circumstances. Notwithstanding the focus
on medical practitioners, the legal principles that have emerged from these cases are
relevant to all healthcare professionals, including nurses and midwives, involved in
delivering healthcare and/or providing advice and information about proposed
healthcare.
The principal cases determined by the courts involving doctors and the standard
of care expected have all centred around the standard of care expected of them in
two aspects of their work — the standard of care expected in the actual performance
of their work and the standard of care expected in giving information and advice
to patients about material risks inherent in the treatment proposed. On that issue,
the Ipp Report noted:
Issues about the standard of care in medical negligence cases may arise in
relation to treatment (which includes diagnosis, the prescribing of
medications and the carrying out of procedures) and to the giving of
information about treatment. The Panel considers that the provision of
treatment on the one hand, and the provision of information on the other,
is a very important one, and that the law should deal with these activities in
different ways. The standard of care therefore has to be discussed separately
in regard to each.6
The outcome is that, in the provision of healthcare, the standard of care expected
in ‘treatment’ cases differs from the standard of care expected in ‘information’ cases
(the giving of information and/or advice, the disclosure of risk and the provision
of warnings). That approach does not only apply to medical practitioners but also
to other healthcare professionals, including nurses and midwives.
STANDARD OF CARE IN TREATMENT CASES

The standard of care expected of medical practitioners, nurses and midwives in the
actual performance of their work (treatment cases), is the same as for other health-
care professionals (and professionals generally). That obligation is provided for in
case law as determined by the courts together with the civil liability legislation of
the states and territories referred to earlier; that is, that in the performance of his
or her work, a healthcare practitioner should exercise a level of skill and care that,
50
at the time, is ‘widely accepted’ by ‘peer professional opinion’ to be ‘competent

professional practice’. In the Australian Capital Territory, section 42 of the Civil
Law (Wrongs) Act 2002 applies the ‘reasonable person in the defendant’s position’
test which is in many respects simply a reaffirmation of the common-law principle
of the ‘ordinary reasonable person’. In the Northern Territory, there is no legislative
provision in place and so the common-law principles as supported by case law would
apply.
In many respects, the test of ‘peer professional opinion’ in relation to medical
practitioners in particular had earlier been expressed in cases determined by the
courts both here and in the United Kingdom. The principle that emerged from
such cases was known as the Bolam test. The case originated from the United
Kingdom decision of Bolam v Friern Hospital Management Committee (1957).7 The
relevant facts are set out below.
Mr Bolam was admitted to hospital as a voluntary patient to undergo electro-
convulsive therapy (ECT) for depression. In accordance with his usual practice at
the time, the treating doctor administered the ECT unmodified; that is, no relaxant
drug was given before the treatment and no manual restraint was applied other than
holding Mr Bolam’s chin and nurses being present on either side of the couch in
case he fell off. During the treatment, Mr Bolam sustained bilateral fractures of the
pelvis caused by the head of the femur being driven through the acetabulum. Mr
Bolam sued the hospital, alleging that the doctor was negligent on three grounds:
1) failing to administer any relaxant drug prior to the ECT;
2) failing to provide some adequate form of manual control or restraint;
3) failing to warn Mr Bolam of the risks involved in the treatment.
In addressing the jury in the case, the judge described the standard expected of
the ordinary reasonable doctor as follows:
… the test is the standard of the ordinary skilled man exercising and
professing to have that special skill. A man need not possess the highest
expert skill; it is well established law that it is sufficient if he exercises
the ordinary skill of an ordinary competent man exercising that particular
art.8
The doctors treating Mr Bolam stated that it was not their practice to warn
patients of the risks of the treatment unless asked; if asked they normally said there
was a slight risk. Evidence was given by expert medical witnesses who stated that
while relaxants and restraints were used by some doctors, other doctors did not use
them. Mr Bolam was unsuccessful in his action.
The outcome in Mr Bolam’s case was that the question of whether or not a patient
had been properly treated and informed as to the risks inherent in the proposed
treatment depended entirely on what the medical profession thought was reasonable
in all the circumstances. The added burden was then imposed on the patient that,
having been informed to the extent that the medical profession as a body of opinion
thought was reasonable, he was then required to show that, had he been warned,
he would not have had the treatment.
51
The central tenet of the Bolam test or principle was that the standard of care
expected of medical practitioners was determined by reference to professional prac-
tice based on ‘a responsible body of medical men skilled in that particular act’ as
the following statement from the judgment in that case confirmed that:
… a doctor is not guilty of negligence if he has acted in accordance with a
practice accepted as proper by a responsible body of medical men skilled in
that particular art … merely because there is a body of opinion that would
take a contrary view.9
The test established in Bolam was later affirmed in a 1985 case in the United
Kingdom in the following terms:
The Bolam principle may be formulated as a rule that a doctor is not
negligent if he acts in accordance with a practice accepted at the time as
proper by a responsible body of medical opinion even though other doctors
adopt a different practice. In short, the law imposes the duty of care: but
the standard of care is another matter of medical judgment.10
In Australia, the High Court modified the Bolam test in that they confirmed it
as the principle to be applied in determining the standard of care for medical prac-
titioners (as well as other healthcare professionals) in relation to ‘treatment’ cases
but rejected it in relation to ‘information’ cases and the test to be applied. That was
the outcome of the High Court in the decision of Rogers v Whitaker.11 The relevant
facts are set out below.
In 1946, when Mrs Whitaker was only 9 years old, her right eye had suffered a
penetrating injury from a piece of wood in an accident. As a result she became
almost totally blind in that eye. However, she retained normal vision in her left eye.
Despite this handicap Mrs Whitaker was able to lead a normal life. She completed
her schooling and after leaving school worked in a variety of occupations including
shop assistant, enrolled nurse’s aide and health studio manager. In 1959 she married
and she and her husband had four children. In between having children she was
able to work in various occupations.
Mrs Whitaker ceased employment in 1980 to look after her son Joshua who had
been injured in a car accident. By 1983, she had formed the intention of going
back to work, possibly as a nurse’s aide, and with employment in mind she set out
to obtain an eye ‘check up’. She was referred by her general practitioner to Dr
Cohen, an ophthalmologist, who she saw on 23 June 1983. Dr Cohen prescribed
reading glasses and referred Mrs Whitaker to Dr Rogers for possible surgery on her
right eye; in the words of his referral ‘if you think she would benefit, even cosmeti-
cally’. Dr Cohen described Dr Rogers to Mrs Whitaker as a ‘cornea graft expert’.
Family circumstances prevented Mrs Whitaker from following up the referral until
the following year when she saw Dr Rogers for the first time, with her husband, on
22 May 1984.
Following his examination of Mrs Whitaker, Dr Rogers told her that he could
operate on her right eye to remove the scar tissue. This would improve the appear-
ance of the eye, but at the same time would probably restore significant sight to
52
that eye. He also discussed the possibility of further procedures including a cornea
graft which could further improve her sight, and an operation to correct a slight
squint in that eye. He also explained that the first operation would assist in manag-
ing her early glaucoma.
At the second consultation on 15 June 1984 Mrs Whitaker agreed to submit to
surgery on her right eye and the procedure was carried out on 1 August of that year.
Subsequently complications developed in the right eye and then in the left eye,
although that eye had not been interfered with during the operation. This was the
result of a rare condition known as ‘sympathetic ophthalmia’. This is a serious
complication of eye surgery involving inflammation in the treated eye and sympa-
thetic inflammation in the untreated eye. It carries with it a serious risk of blindness.
Ultimately Mrs Whitaker lost the sight of her left eye, becoming virtually blind by
the beginning of 1986.
Mrs Whitaker brought an action against Dr Rogers for professional negligence.
She alleged that Dr Rogers was negligent on the following six grounds:
1) failing to carry out certain tests before operating;
2) recommending and performing an ill-advised operation;
3) failing to warn Mrs Whitaker of the risk of sympathetic ophthalmia;
4) failing to follow up missed appointments by Mrs Whitaker after surgery;
5) failing to advise Mrs Whitaker adequately as to the use of prescribed
medication;
6) failing to enucleate the right eye following the development of symptoms of
sympathetic ophthalmia in the left eye.
The judge rejected all of the allegations of negligence with the exception
of ground 3 above. He upheld the allegation of failure to warn and in doing
so relied on a number of issues which were established by the evidence given,
namely:
• that Mrs Whitaker was, to Dr Rogers’ knowledge, keenly interested in the
outcome of the suggested procedures including any complications so far as
they affected her eyes — although she did not think of damage to the left eye
as a result of the operation on the right eye apart from that which might be
caused by unintended or accidental interference with her left eye;
• that Mrs Whitaker incessantly questioned Dr Rogers as to, amongst other
things, possible complications, to the point of irritating him;
• that Dr Rogers was aware of the risk of sympathetic ophthalmia, although
remote, and in 1984 thought that the risk, although still remote, might have
been increased by earlier injury;
• that Dr Rogers considered sympathetic ophthalmia the worst possible
ophthalmic result;
• that the absence of any warning as to the risk of sympathetic ophthalmia was
not for any therapeutic reason, but rather that, in the circumstances, the
condition would not come to mind to mention it.
53
In summary, the judge found that Dr Rogers had been negligent in failing to
warn the respondent of the risk of sympathetic ophthalmia and that if such a
warning had been given Mrs Whitaker would not have undergone surgery in her
right eye. Mrs Whitaker was awarded compensation and Dr Rogers appealed to the
New South Wales Court of Appeal.
The New South Wales Court of Appeal dismissed Dr Rogers’ appeal and he
appealed to the High Court of Australia.
The High Court unanimously dismissed Dr Rogers’ appeal and in doing so
adopted the Bolam principle as the general standard applicable to a person with
special skill and competence as follows:
In Australia, it has been accepted that the standard of care to be observed by
a person with some special skill or competence is that of the ordinary skilled
person exercising and professing to have that special skill.12
The High Court decision in Rogers v Whitaker continues to be the relevant
common law authority in determining the standard of care expected of medical
practitioners (and other healthcare professionals) in treatment cases. That is, the
standard expected will be determined by reference to what would be the level of
skill and expertise accepted by a responsible body of peer opinion as being compe-
tent professional practice, at the time, having regard to the facts and circumstances
then prevailing.
Some time after the decision in Rogers v Whitaker and following the recommen-
dations of the Ipp Report, the states and territories introduced the civil liability
legislation mentioned earlier. As a consequence, the standard of care expected of
healthcare professionals in treatment cases, as enunciated in Rogers v Whitaker (and
other cases), is now influenced by the standard of care provisions applying to profes-
sionals in that legislation.
LEGISLATIVE PROVISIONS RELEVANT TO DETERMINING THE STANDARD OF CARE

With the exception of the Northern Territory, each state and territory has legislated
in relation to the expected standard of care in civil negligence matters. Further, most
have made specific provisions for the standard of care for ‘professionals’ or, in the case
of Western Australia, specifically for ‘health professionals’. The Australian Capital
Territory legislation refers simply to the standard of care expected of a ‘reasonable
person in the defendant’s position’. Because of the absence of uniformity of approach
on this issue, it is important for nurses and midwives to be aware of those differences
depending on the particular state or territory in which they are practising. The rel-
evant legislative provisions of each state and territory are set out below.
Australian Capital Territory
Section 42 of the Civil Law (Wrongs) Act 2002 provides for the standard of care
for professionals as follows:
For deciding whether a person (the defendant) was negligent, the standard
of care required of the defendant is that of a reasonable person in the
defendant’s position who was in possession of all the information that the
defendant either had, or ought reasonably to have had, at the time of the
incident out of which the harm arose.
54
New South Wales

Section 5O of the Civil Liability Act 2002 provides as follows:
1) A person practising a profession (a professional ) does not incur a liability
in negligence arising from the provision of a professional service if it is
established that the professional acted in a manner that (at the time the
service was provided) was widely accepted in Australia by peer
professional opinion as competent professional practice.
2) However, peer professional opinion cannot be relied on for the purposes
of this section if the court considers that the opinion is irrational.
3) The fact that there are differing peer professional opinions widely
accepted in Australia concerning a matter does not prevent any one or
more (or all) of those opinions being relied on for the purposes of this
section.
4) Peer professional opinion does not have to be universally accepted to be
considered widely accepted.
Queensland
Section 22 of the Civil Liability Act 2003 provides as follows:
1) A professional does not breach a duty arising from the provision of a
professional service if it is established that the professional acted in a way
that (at the time the service was provided) was widely accepted by peer
professional opinion by a significant number of respected practitioners in
the field as competent professional practice.
2) However, peer professional opinion can not be relied on for the purpose
of this section if the court considers that the opinion is irrational or
contrary to a written law.
3) The fact that there are differing peer professional opinions accepted by a
significant number of respected practitioners in the field concerning a
matter does not prevent any 1 or more (or all) of the opinions being
relied on for the purposes of this section.
5) This section does not apply to liability arising in connection with the
giving of (or the failure to give) a warning, advice or other information,
in relation to the risk of harm to a person, that is associated with the
provision by a professional of a professional service.
South Australia
1) A person who provides a professional service incurs no liability in
negligence arising from the service if it is established that the provider
acted in a manner that (at the time the service was provided) was widely
accepted in Australia by members of the same profession as competent
professional practice.
55
2) However, professional opinion cannot be relied on for the purposes of

this section if the court considers that the opinion is irrational.
3) The fact that there are differing professional opinions widely accepted in
Australia by members of the same profession does not prevent any one or
more (or all) of those opinions being relied on for the purposes of this
section.
4) Professional opinion does not have to be universally accepted to be
giving of (or the failure to give) a warning, advice or other information in
respect of a risk of death of or [sic] injury associated with the provision of
a health care service.
Tasmania
1) A person practising a profession (‘a professional’) does not breach a duty
arising from the provision of a professional service if it is established that
the professional acted in a manner that (at the time the service was
provided) was widely accepted in Australia by peer professional opinion as
competent professional practice.
2) Peer professional opinion cannot be relied on for the purpose of this
section if the court considers that the opinion is irrational.
Australia concerning a matter does not prevent any one or more (or all)
of those opinions being relied on for the purpose of subsection (1).
giving of (or the failure to give) a warning, advice or other information in
relation to the risk of harm associated with the provision by a professional
of a professional service to a person.
Victoria
Sections 58 and 59 of the Wrongs Act 1958 provide as follows:
Section 58:
In a case involving an allegation of negligence against a person (the defendant)
who holds himself or herself out as possessing a particular skill, the standard to
be applied by a court in determining whether the defendant acted with due
care is, subject to this Division, to be determined by reference to —
a) what could reasonably be expected of a person possessing that skill; and
b) the relevant circumstances as at the date of the alleged negligence and
not a later date.
Section 59:
56
1) A professional is not negligent in providing a professional service if it is

established that the professional acted in a manner that (at the time the
service was provided) was widely accepted in Australia by a significant
number of respected practitioners in the field (peer professional opinion)
as competent professional practice in the circumstances.
2) However, peer professional opinion cannot be relied on for the purposes
of this section if the court determines that the opinion is unreasonable.
Australia by a significant number of respected practitioners in the field
concerning a matter does not prevent any one or more (or all) of those
opinions being relied on for the purposes of this section.
widely accepted.
5) If, under this section, a court determines peer professional opinion to be
unreasonable, it must specify in writing the reasons for that determination.
6) Subsection (5) does not apply if a jury determines the matter.
Western Australia
Western Australia is the only state to have a specific standard of care for healthcare
professionals. Section 5PB of the Civil Liability Act 2002 provides as follows:
1) An act or omission of a health professional is not a negligent act or
omission if it is in accordance with a practice that, at the time of the act
or omission, is widely accepted by the health professional’s peers as
competent professional practice.
2) Subsection (1) does not apply to an act or omission of a health professional
in relation to informing a person of a risk of injury or death associated with —
a) the treatment proposed for a patient or a foetus being carried by a
pregnant patient; or
b) a procedure proposed to be conducted for the purpose of diagnosing a
condition of a patient or a foetus carried by a pregnant patient.
3) Subsection (1) applies even if another practice that is widely accepted by
the health professional’s peers as competent professional practice differs
from or conflicts with the practice in accordance with which the health
professional acted or omitted to do something.
4) Nothing in subsection (1) prevents a health professional from being liable
for negligence if the practice in accordance with which the health
professional acted or omitted to do something is, in the circumstances of
the particular case, so unreasonable that no reasonable health professional
in the health professional’s position could have acted or omitted to do
something in accordance with the practice.
5) A practice does not have to be universally accepted as competent
professional practice to be considered widely accepted as competent
professional practice.
57
6) In determining liability for damages for harm caused by the fault of a

health professional, the plaintiff always bears the onus of proving, on the
balance of probabilities, that the applicable standard of care (whether
under this section or any other law) was breached by the defendant.
It is important to note that section 42 of the Australian Capital Territory

legislation set out above does not refer to persons practising as ‘professionals’ or to
persons holding ‘himself or herself out as possessing a particular skill’. Consequently
it is of wider application and would apply to any defendant in a civil negligence
action.
Northern Territory
In the absence of any specific legislative provision, the determination of the stan-
dard of care where negligence is alleged would be determined by reference to the tests
enunciated in Rogers v Whitaker for both ‘treatment’ and ‘information’ cases.
THE DETERMINATION OF THE STANDARD OF CARE IN TREATMENT CASES

FOLLOWING THE INTRODUCTION OF THE CIVIL LIABILITY LEGISLATION IN THE
STATES AND TERRITORIES
Following the introduction of the civil liability legislation in the respective states
and territories, the approach taken by the courts in determining whether a medical
practitioner (or any other health professional) has been negligent in treatment cases,
has been to apply the principle established in Rogers v Whitaker qualified by the
relevant civil liability provision of the particular state or territory relating to the
determination of the standard of care. For example, in New South Wales, in adopt-
ing such an approach, section 5O of the Civil Liability Act 2002 would arise for
consideration. Where that has been done it has been held to operate as a defence.
This approach was adopted in the New South Wales Supreme Court decision of
Halverson v Dobler; Halverson (by his tutor) v Dobler.13 In that case, Kurt Halverson
sued his general practitioner, Dr Dobler, for negligence for failing to properly diag-
nose his cardiac problems and refer him to a specialist before he suffered a cardiac
arrest and sustained catastrophic injuries due to hypoxic brain damage. In determin-
ing the matter and after hearing expert peer evidence and finding Dr Dobler neg-
ligent McClellan J stated:
… the standard of care is still the standard that was endorsed in Rogers v
Whitaker, but if a defendant is found to be negligent under this standard he
or she can avoid liability if they can establish that they acted in a manner
which was widely accepted in Australia by peer professional opinion as
competent professional practice.14
And further:
In my view the section is intended to operate as a defence. The section is
expressed so that ‘a person practising a profession … does not incur a
liability in negligence’ if a certain state of affairs can be ‘established’. The
italicised words go to the issue of liability, not to the issue of negligence.15
58
The approach enunciated in Halverson v Dobler above was confirmed on appeal

by the New South Wales Court of Appeal. It would be expected that a similar
approach would be adopted in the other states and territories with civil liability
legislation incorporating standard of care provisions equivalent to section 5O of the
Civil Liability Act 2002 (NSW).
THE STANDARD OF CARE IN INFORMATION CASES

In confirming the test to be applied in determining the standard of care expected
of healthcare professionals in giving information, including advice as to the risks
and the likely outcome of the proposed treatment, the High Court stated in Rogers
v Whitaker:
Further, and more importantly, particularly in the field of non-disclosure of
risk and the provision of advice and information, the Bolam principle has
been discarded and, instead, the courts have adopted the principle that,
while evidence of acceptable medical practice is a useful guide for the
courts, it is for the courts to adjudicate on what is the appropriate standard
of care after giving weight to ‘the paramount consideration that a person is
entitled to make his own decisions about his life’.16
The High Court further commented:
… except in cases of emergency or necessity, all medical treatment is

preceded by the patient’s choice to undergo it. In legal terms, the patient’s
consent to the treatment may be valid once he or she is informed in broad
terms of the nature of the procedure which is intended. But the choice is, in
reality, meaningless unless it is made on the basis of relevant information
and advice. Because the choice to be made calls for a decision by the patient
on information known to the medical practitioner but not to the patient, it
would be illogical to hold that the amount of information to be provided by
the medical practitioner can be determined from the perspective of the
practitioner alone or, for that matter, of the medical profession.17
It is clear, in arriving at their decision in Rogers v Whitaker, that the High
Court shifted the determination of the adequacy or otherwise of advice and infor-
mation about proposed treatment to be given to a patient from the ‘responsible
body of medical opinion’ to the courts, having regard at all times to the necessary
information and advice to be given to the patient in order to obtain his or her
consent.
The decision in Rogers v Whitaker was a very important one in the field of
medico–legal litigation concerning the standard of care expected in ‘information’
cases. It shifted the emphasis in relation to the adequacy of information and advice
to be given to a patient, from the doctors’ belief as to what was reasonable, to what
the patient in his or her particular circumstances would consider reasonable.
Following its decision in Rogers v Whitaker, the High Court reaffirmed its view
on this issue. The decision that did so emphatically was that in Chappel v Hart.18
The relevant facts and findings of the court are set out below.
59
Dr Chappel was an ear, nose and throat specialist. In June 1983, Mrs Hart
underwent surgery at the hands of Dr Chappel for the removal of a pharyngeal
pouch in her oesophagus. During that procedure, her oesophagus was perforated
and there ensued an infection known as mediastinitis. This was caused by bacteria
present in the oesophagus escaping through the perforation into the mediastinum,
which is part of the chest cavity. Mrs Hart recovered from the perforated oesophagus
and mediastinitis, but the infection damaged the laryngeal nerve and led to a
paralysis of the right vocal cord. This affected the performance by Mrs Hart of her
duties in a senior position in the New South Wales Department of Education. In
1985, she was retired from that position on medical grounds.
In June 1983, the surgical procedure was ‘elective’ for Mrs Hart, although at a
later stage the position would have been reached where it could no longer sensibly
be deferred. The evidence did not indicate with any precision when Mrs Hart’s
condition would have reached that stage. Mrs Hart sued Dr Chappel for breach of
contract and negligence. Mrs Hart alleged that she had consulted Dr Chappel for
advice concerning medical problems relating to her throat and that, after the receipt
of his advice to undergo a surgical procedure, engaged Dr Chappel to carry out that
procedure.
Mrs Hart stated that her agreement with Dr Chappel contained an implied term
that he would warn her of all risks associated with the procedure, that he had failed
to warn her of those risks and he caused or allowed her injuries to be caused. In
particular, she alleged that Dr Chappel, before obtaining her consent to carry out
the procedure, had failed to warn her of the risks of sustaining the injuries which
she in fact sustained. She stated that if he had so warned her she would not have
had the operation by Dr Chappel at that time but would have waited and sought
alternative specialist advice. Mrs Hart further alleged that, in consequence of this
negligence and breach of contract, she had sustained a perforated oesophagus and
consequent paralysis of the right vocal cord.
Applying the principles laid down in Rogers v Whitaker, the Supreme Court of
New South Wales found in Mrs Hart’s favour. Dr Chappel appealed to the New
South Wales Court of Appeal. So too did Mrs Hart, but that action is not relevant
for consideration here.
The Court of Appeal dismissed Dr Chappel’s appeal (and Mrs Hart’s). He
appealed to the High Court arguing, in essence, that Mrs Hart’s damage and loss
was not caused by his failure to warn her of the material risk of the damage that
did occur. Mrs Hart had said that if she had known of the possibility of the damage
that occurred she would not have agreed to allow Dr Chappel to operate when he
did and she would have had a more experienced specialist surgeon perform the
procedure at a later time.
Dr Chappel argued that the damage that had occurred to Mrs Hart was ‘a random
event involving no negligent procedure’ and there was no evidence that deferring
the operation for some future time would have diminished the risk of the same
kind of damage occurring.
The High Court appeal was heard by a bench of five judges. By a majority of three
to two, the court dismissed Dr Chappel’s appeal. In the dismissal, the High Court
expressly reaffirmed the view they had expressed in Rogers v Whitaker, that is:
60
… a doctor has a duty to warn a patient of a material risk inherent in the

proposed treatment …19
And that:
… a risk is material if, in the circumstances of the particular case, a
reasonable person in the patient’s condition, if warned of the risk, would be
likely to attach significance to it or if the medical practitioner is or should
reasonably be aware that the particular patient, if warned of the risk, would
be likely to attach significance to it.20
One of the High Court judges who dismissed Dr Chappel’s appeal was Justice
Michael Kirby. In restating the decision of the High Court in Rogers v Whitaker in
the above passage, Kirby J said:
These standards have fairly been described as onerous. They are. But they
are the law. They are established for good reason. When not complied with
(as was held to be so in this case) it should occasion no surprise that legal
consequences follow. This was an unusual case where the patient was found
to have made very clear her concerns. The practicalities are that, had those
concerns been met as the law required, the overwhelming likelihood is that
the patient would not, in fact, have been injured. So much was eventually
conceded. In such circumstances, commonsense reinforces the attribution of
legal liability. It is true to say that the inherent risks of injury from rare and
random causes arise in every surgical procedure. A patient, duly warned
about such risks, must accept them and their consequences. Mrs Hart was
ready to accept any general risks of the operation of which she was warned.
However, she declined to bear the risks about which she questioned the
surgeon and received no adequate response. When those risks so quickly
eventuated, commonsense suggests that something more than a mere
coincidence or irrelevant cause has intervened. This impression is reinforced
once it is accepted that Mrs Hart, if warned, would not have undergone the
operation when she did.21
The principle established in Rogers v Whitaker and Chappel v Hart was reaffirmed
by the High Court in Rosenberg v Percival.22 Those decisions make it clear that
the standard of care healthcare professionals owe to their patients includes an obli-
gation not only to treat them competently according to professional standards but
also to inform, advise and warn them about risks associated with the proposed
treatment, to answer their questions candidly and to respect their rights (including,
where they so choose, to postpone medical procedures and go elsewhere for
treatment).
In addition to the case law, the civil liability legislation in some of the states and
territories has made specific provision for a medical practitioner to warn patients
of ‘risks in treatment’ whereas in other states there is no duty to disclose ‘obvious
risks’ except in some circumstances as provided in the legislation. Queensland and
Tasmania provide for what is described as a proactive and reactive duty of a medical
practitioner to warn of risks. For example, section 21 of the Civil Liability Act 2003
(Qld) states:
61
1) A doctor does not breach a duty owed to a patient to warn of risk, before
the patient undergoes any medical form of treatment (or at the time of
being given medical advice) that will involve a risk of personal injury to
the patient, unless the doctor at that time fails to give or arrange to be
given to the patient the following information about the risk —
a) information that a reasonable person in the patient’s position would, in
the circumstances, require to enable the person to make a reasonably
informed decision about whether to undergo the treatment or follow the
advice;
b) information that the doctor knows or ought reasonably to know the
patient wants to be given before making the decision about whether to
undergo the treatment or follow the advice.
…
Section 21 of the Tasmanian Civil Liability Act 2002 is in similar terms except
that the above obligations are exempted in emergency circumstances where it is
necessary to save life and/or where the patient is unable to be consulted or advised
because of prevailing circumstances.
In Victoria the obligation to warn of risk is not confined to doctors and, in our
view, simply restates the common law position. Section 50 of the Wrongs Act 1958
states:
A person (the defendant) who owes a duty of care to another person
(the plaintiff) to give a warning or other information in respect of a risk or
other matter, satisfies that duty of care if the defendant takes reasonable care
in giving that warning or other information.
In New South Wales, Queensland, South Australia, Tasmania, Victoria and
Western Australia there is no duty to warn of ‘obvious risks’ but in most of the states
there are limits to such a provision relevant to healthcare professionals. For example,
section 5H of the Civil Liability Act 2002 (NSW) states:
1) A person (the defendant) does not owe a duty of care to another person
(the plaintiff ) to warn of an obvious risk to the plaintiff.
2) This section does not apply if:
a) the plaintiff has requested advice or information about the risk from
the defendant, or
b) the defendant is required by a written law to warn the plaintiff of the
risk, or
c) the defendant is a professional and the risk is a risk of the death of or
personal injury to the plaintiff from the provision of a professional
service by the defendant.
3) Subsection (2) does not give rise to a presumption of a duty to warn of a
risk in the circumstances referred to in that subsection.
As a proper reading of that section confirms, healthcare professionals would
almost invariably not be exempted from a duty to warn of an ‘obvious risk’ as they
are generally in the business of responding to a request from a patient or client for
62
advice or information about proposed treatment, and the person asking for advice
or information faces a risk of death or personal injury arising from the services
provided by a healthcare professional.
Similar provisions apply in the following states: Civil Liability Act 2003 (Qld)
ss 13–15; Civil Liability Act 1936 (SA) ss 36–38; Civil Liability Act 2002 (Tas)
ss 15–17; Wrongs Act 1958 (Vic) ss 53, 54 and 56; Civil Liability Act 2002 (WA)
ss 5M–5O.
There are no such provisions in the Australian Capital Territory or the Northern
Territory.
THE STANDARD OF CARE EXPECTED OF NURSES AND MIDWIVES ACTING IN A

PROFESSIONAL CAPACITY
The approach to be taken in establishing the standard of care for nurses and mid-
wives is the same as for other healthcare professionals.
The long-established common-law principle reaffirmed in Rogers v Whitaker is
that, in the course of carrying out his or her professional activities, a nurse or
midwife is required to exercise the skill and care that, objectively, would be accepted
by one’s professional peers as competent professional practice given the facts and
circumstances under consideration. The same approach would be taken when con-
sidering the actions of a registered nurse when compared with an enrolled nurse in
the same clinical situation. The level of skill and care expected of an enrolled nurse
in a particular clinical situation would generally be of a different standard than that
expected of a registered nurse, because the expected skills and knowledge of an
enrolled nurse is less than that of a registered nurse. As always, it would depend on
the facts and circumstances of the particular situation and considered within an
objective context.
EXPERT EVIDENCE FROM PROFESSIONAL PEERS
Notwithstanding the differences in the respective state and territory legislation,
there is what can be described in our opinion as a common approach to the deter-
mination of the requisite professional standard in any particular situation. That is,
that the approach to determining the requisite standard of care requires evidence
of a professional standard that is ‘widely accepted’ by ‘peer professional opinion’ as
being ‘competent professional practice’. The majority of the states (New South
Wales, South Australia, Tasmania and Victoria) provide that the professional stan-
dard be widely accepted ‘in Australia’ whereas Queensland and Western Australia
provide no such limitation which would allow evidence of a professional standard
to be obtained from overseas medical experts. Remember also that the Northern
Territory makes no legislative provision for the determination of the requisite stan-
dard of care in a professional situation, therefore, the common-law principle estab-
lished in Rogers v Whitaker would apply and evidence would be elicited from one’s
professional peers in order to determine what would have been expected of the
‘professionally competent’ nurse or midwife in a specific clinical situation. Likewise
is the case in the Australian Capital Territory.
Evidence elicited from one’s professional peers is generally the first step in deter-
mining the standard of care expected in a specific clinical situation. Therefore, if an
incident occurred in an operating theatre, where the actions of a nurse were alleged
63
to have been negligent, evidence would be called from a nurse with considerable
experience in operating theatre work and who would be regarded as an expert in
that area by her or his peers. That nurse would be asked to give an opinion, on the
basis of the known facts, as to what was considered to be widely accepted competent
professional practice in such circumstances; that is, what would have been the pro-
fessional standard expected of a nurse in the particular clinical situation under
scrutiny. It is quite possible, of course, that his or her evidence may be rejected or
disputed by other nursing experts in the field called in the matter. The ultimate
decision as to whether expert evidence is accepted or rejected will be a matter for
the judge to determine (or the jury if they are present). The critical point to remem-
ber is that it is the profession itself, through the development of skills and the
application of professional standards, that will determine what is or is not compe-
tent professional practice in any given clinical situation where professional compe-
tence is called into question.
The approach is clearly parallelled in other areas of professional activity concern-
ing healthcare professionals. For example, if it were necessary to establish what was
competent professional practice in the area of midwifery, expert evidence would be
elicited from a midwife considered an expert in the field.
PROFESSIONAL PRACTICE STANDARDS

Nurses and midwives, like many other professional groups within the health indus-
try, have addressed the need for the development of professional standards covering
a wide range of their professional activities and responsibilities. The development
of such standards is to be applauded and encouraged, as long as they are subject to
regular professional peer review and assessment and are generally recognised by the
profession as appropriate for the professional activity to which they refer. Like the
departmental and employer policy and procedural directives, professional standards
documents would, where relevant, clearly provide objective evidence of an expected
and competent standard of professional conduct in a given clinical situation.
The courts in Australia and overseas have on occasions seen fit to specifically refer
to documented practice and procedure standards as evidence to assist them in
determining the standard of care expected of a nurse or midwife in a given situation.
A very good example of where the court relied on a professional standards document
was in the case of Langley v Glandore Pty Ltd — a decision of the Court of Appeal
of the Supreme Court of Queensland.23 The full details of that matter are set out
later in this chapter.
That matter involved, amongst other things, the standard expected of nursing
staff in operating theatres in relation to the counting of sponges. In commenting
on that issue, the court said:
The relevant established standard for counting of sponges, swabs,
instruments and needles is called the ‘ACORN’ standard and it supports the
description of the duties that has been outlined. Importantly, there was no
dissent at the trial concerning its applicability.24
Nurses who work in operating theatres would know that ‘ACORN’ refers to the
standards adopted by the Australian Council of Operating Room Nurses (ACORN).
64
As well, a recent Canadian case used the standing orders of an emergency room
as the standard against which medical and nursing practice should be measured.25
In another Canadian case, an entire section of the procedure manual was reproduced
in the judgment as it was considered crucial to determining the question of whether
or not the practice under review had fallen below the standard of care which could
reasonably have been expected.26
Closer to home, the Supreme Court of South Australia has made specific refer-
ence to professional standards in dealing with an appeal against a finding of a dis-
ciplinary tribunal of the Nurses Board of South Australia in the following terms:
It may be seen that the Board in reaching its decision that the Appellant
had been guilty of unprofessional conduct, had regard to the various
standards of nursing practice which had been laid down by its own
guidelines, the policy of the nursing home, regulations, the International
Council of Nursing’s Code of Ethics and what it describes as the ANRAC
competencies. It may be accepted that those standards are well recognised
and accepted in the nursing profession.27
STATUTORY OBLIGATIONS
There are often clear legislative obligations on nurses, midwives and other healthcare
professionals to undertake specific actions. For example, the Poisons Act and Regula-
tions of the states and territories generally provide that a registered nurse or midwife
is required to check a dangerous drug (generally referred to as a Schedule 8 drug)
with another nurse or midwife before administering it. A failure to do so, without
reasonable cause and which results in an incorrect drug being administered and the
patient suffering harm as a result, would be deemed to be a breach of the nurse or
midwife’s obligations under the Poisons Act and Regulations. This would be in addi-
tion to a breach of his or her general duty of care to the patient by failing to observe
proper professional standards of care and safety in the administration of a dangerous
drug.
Another example of where a breach of a statutory obligation by a medical prac-
titioner was relied upon to support an allegation of professional negligence was the
case of BT v Oei, referred to earlier in this chapter. One of the specific failures cited
by the plaintiff against Dr Oei was that he was in breach of the Public Health Act
1991 (NSW) and Public Health (General) Regulation 2002 (NSW). On that point
the judge agreed, stating relevantly as follows:
[92] The Public Health Act 1991 s.12(1) requires a medical practitioner
who believes on reasonable grounds that his or her partner is suffering from
a sexually transmissible medical condition to provide the patient with such
information as required by the Regulations of the Act.
Regulation 4 of the Public Health Act sets out the categories of information
to be supplied:
a) the means of minimising the risk of infecting other people with the
condition;
b) the public health implications of the condition;
65
c) the responsibilities under s.11 of the Act including any precautions

considered reasonable;
d) responsibilities under s.13 of the Act;
e) diagnosis and treatment;
f ) treatment options.28
[93] Section 13 of the Public Health Act makes it an offence for a person
who knows that he or she suffers from a sexually transmissible medical
condition to have sexual intercourse with another person unless, before the
intercourse takes place, the other person has been informed of the risk of
contracting a sexually transmissible medical condition and has voluntarily
agreed to accept that risk.
[94] The scheme of the Public Health Act thus requires a medical
practitioner who reasonably believes his or her patient to have HIV to
inform the patient of the public health implications of the condition and
the means of protecting others. The practitioner must inform the patient of
the patient’s statutory responsibility to warn prospective sexual partners of
his or her condition.29
In finding Dr Oei negligent, the judge agreed that Dr Oei had, amongst other
matters, failed in the circumstances to discharge his statutory obligation to properly
advise his patient, AT, of the need to be HIV tested and as a result and at the rel-
evant time, AT had unprotected sex with BT who contracted HIV.
DEPARTMENTAL GUIDELINES AND/OR EMPLOYER POLICY AND

PROCEDURE DIRECTIVES
More often than not, the respective state or territory and Commonwealth depart-
ments of health issue numerous policy circulars, many of which are directly relevant
to nurses and midwives in their day-to-day work. Such policy circulars very often
lay down procedures and practices to be observed and enforced in given clinical
situations and are generally issued as a clear indication of the standards to be
observed in such situations.
In addition, employers in the health industry put in place a large number of
policy and procedure directives designed to ensure that employees follow a safe and
recognised standard of clinical practice. Accreditation standards documents are
often another source of expected professional clinical standards. Often a plaintiff
alleging failure by a nurse or midwife to abide by a particular policy or procedure
directive may provide supportive evidence of the standard of care expected in a
given situation by referring to such documents. For example, if a hospital procedure
manual laid down the strict procedure to be followed in adding prescribed drugs
to a patient’s IV fluid line, or in the administration of a blood transfusion, then an
unreasonable failure or refusal to abide by such procedural directives, with conse-
quent adverse effects on the patient, would clearly place the nurse or midwife in
breach of the proper and generally recognised safety standards laid down by the
employer. It would also place the nurse or midwife in breach of his or her overall
duty of care to the patient because he or she failed to observe proper standards of
66
care and safety in carrying out professional procedures — the employer’s policy and
procedure directive would be used as evidence of what constituted competent
professional practice, against which the conduct of the nurse or midwife would
be judged.
ACADEMIC TEXTS AND PUBLICATIONS

Recognised academic texts relevant to that particular area of healthcare and profes-
sional practice under scrutiny may provide the foundation for establishing evidence
of widely accepted and competent professional practice.
THE PATIENT’S MEDICAL RECORDS

While the patient’s medical records are not documents that, of and by themselves,
would be referred to for determining the standard of care expected in a given clinical
situation, we mention them in relation to this issue because the patient’s medical
records will invariably disclose whether or not the clinical care given to the patient
did or did not accord with competent professional practice. When ‘peer professional
opinion’ evidence is elicited and policy and procedure protocols are subpoenaed
and read, the patient’s medical records will be scrutinised to ascertain if the staff
involved in the care of the patient, by their actions or omissions, did or did not
abide by the expected standard of care expressed by peer opinion or found in policy
and procedure protocols of the employer or health service. A patient’s medical
records contain critical evidence of what treatment, care or advice was given to the
patient — or not, as the case may be. For example, all treatment notes, medication
order sheets, observation charts, pathology results, radiological reports and all docu-
ments relating to the patient’s care and treatment will be located in the patient’s
medical records. Those documents will often be a valuable source of evidence for a
healthcare professional in order to demonstrate that the treatment and care given
was of a ‘professionally competent’ standard. Alternatively, they can be a source of
evidence for a plaintiff’s lawyers who may point to entries in such documents (or
the absence thereof ) as evidence in support of their allegation of professional neg-
ligence. As a consequence, the importance of documentation in the delivery of
healthcare is a critical factor of which nurses and midwives should be ever mindful.
This subject is addressed in more detail in Chapter 7.
UNDERSTANDING THE APPROACH TO BE TAKEN IN DETERMINING THE

PROFESSIONAL STANDARD OF CARE
The best way of obtaining an understanding of how the courts would approach the
determination of the standard of care in a professional setting is by examining the
outcomes of cases that have come before the courts or come to light during a coro-
ner’s inquest where the conduct of nurses and midwives in the performance of their
duties has been highlighted. The examples which follow arise in some cases from a
formal finding of civil negligence by a relevant court of law. Other examples are
derived from a coroner’s inquest into the death of a patient. In the case of the latter
examples, there is no formal finding of civil or criminal negligence but rather adverse
and critical comment by the coroner concerning the actions of the nursing staff,
amongst others, leading to the death of the patient.
67
In many situations concerning the determination or otherwise of negligence in

hospital or healthcare situations, the findings of a Coroner’s Court are often the
first step in the legal process, as the findings and evidence elicited in such inquiries
are often used as the basis for a subsequent court action alleging civil or criminal
negligence. For that reason, Coroner’s Court inquest reports are a valuable source
of guidance and assistance in understanding the standard of care expected of nurses
and midwives in certain clinical situations.
The majority of the examples arose before the introduction of the civil liability
legislation setting out the provisions relevant to determining the standard of care
for healthcare professionals (amongst others). That legislative approach does not
negate the following case reports as practical examples that would still be relevant
in determining whether the standard of care given in a given situation was ‘widely
accepted’ by ‘peer professional opinion’ as being ‘competent professional practice’
or otherwise.
EXAMPLE 1: CORONER’S INQUEST INTO THE DEATH OF TRACEY BAXTER

This matter resulted in a coroner’s inquest into the death of a child, Tracey Baxter.
The incident occurred in a hospital in New South Wales in 1979. The facts of the
matter highlight the professional standards expected of nursing staff in caring for
children and the keeping of observation records generally.
Facts
A 6-year-old child was admitted to hospital for a routine tonsillectomy. The
operation was performed at the commencement of the afternoon list and the child
was in the recovery room of the operating theatre at approximately 2.30 pm. Prior
to surgery an intravenous line was inserted and during the operation the child
received 300 ml of normal saline. At the conclusion of the operation the surgeon
wrote on the intravenous fluid order chart that the child was to continue to receive
100 ml per hour of a dextrose/saline solution. The registered nurse in the recovery
room commenced an observation chart on the child (Figure 3.1), but not a fluid
balance chart. That was commenced by the registered nurse in the children’s ward
on the child’s return (Figure 3.2). The registered nurse in the recovery room, apart
from noting some preliminary pulse rate readings, also wrote the initial comment
concerning the intravenous fluids to be given to the child. That comment read,
amongst other things, that the child was to have ‘as much as possible in ward’.
The child was returned to the ward at approximately 3.00 pm and the fluid
balance chart was commenced and observations continued. A glance at the fluid
balance chart in Figure 3.2 will reveal that at 4.30 pm, some one-and-a-half hours
after the child’s return to the ward, a further litre of the dextrose/saline solution
was commenced. This litre went through by 2.00 am the next day, and a further
litre was commenced by the registered nurse on night duty. The fluid balance chart
does not reveal when that litre was intended to be completed but it does reveal that
by some time later that morning (approximately 9.00 am, as best determined in
court) the child had received 700 ml of that litre. The total intravenous fluid intake
of the child from the time of the operation to 9.00 am the next morning was
68
Name: Date:
Time T.P.R B.P I.V.I. Fluids Comments

1430 Pulse 136 I.V.4% Dextrose Condition
1/5 N/S To good
1500 Pulse 130 have 300 Ml in Bleeding
Recovery and NIL
as much as
possible in Ward
1500 TO WARD
1515 P120 R20
1530 P112 R2 sleeping
1800 P110 R20 vomited 15ml sleeping
1830 P112 R20 vomited 15ml sleeping
1900 P102 R20 vomited 20ml restless
2200 T365 P120 R22 vomited 15ml
2300 P98 R20
2400 P86 R18
0100 P88 R18
0130 P86 R16
0200 P66 R18
0230 P60 R20
0600 P60 R20
0630 P76 R22
0700 P80
0800 P86
OBSERVATIONS
Figure 3.1 Child’s observation chart for incident described in example 1
3 litres — remembering the 300 ml of normal saline administered in the operating

theatre that was never entered on the fluid balance chart.
The child’s observations were continued spasmodically, as the observation chart
reveals, and there were occasions when no observations were taken for some hours.
A critical examination of the pulse rate in Figure 3.1 shows a slow but steady decline,
and a relevant section of the nurse’s notes reveals that the child’s pulse rate went
down to as low as 48 on at least one occasion.
69
Name: H.M.O. Date:
INTAKE OUTPUT
ORAL INTRAVENOUS
Fluid Amount
Time Substance Amount commenced completed Time Urine Aspiration Others
12mn
4% Dextrose
1
⁄5
Commenced in O.T 1000 9.45 pm emesis 10
1000 10.30 emesis 10
1630 4% Dextrose 11 pm emesis 10
1
⁄5 N/S 11PM P.U. into bed
1000 12.30 P.U. into bed emesis 20
12mn 1000 1.45 P.U. into bed 10
0200 4% Dextrose 0200 P.U. into bed 10
1
⁄5 N/S 0400 P.U. into bed 10
1000 0600 P.U. into bed
700 0630 P.U. into bed
0700 P.U. into bed
0800 P.U. into bed
0900 P.U. into bed
0945 P.U. into bed
Catherterised 450 mL
12mn
24
hour 24
total 2700 hour total
Total 24 hr intake: 2700 Total 24 hr output: 475 + +
Figure 3.2 Child’s fluid balance chart for incident described in example 1
The following are extracts from the nurse’s notes, written by the registered nurse
on night duty at various intervals during the night:
12.00 am: Patient very distressed twitching; screaming; eyes glazed;
vomiting bile; obs. satisfactory. Dr notified. Ordered stat — Maxolon 31/2
mgm IMI given 12.45 am. Voiding well — Maxolon helped only a little.
Vomiting continued, but twitchings became less and movements generally
became more rational. Pupils still dilated.
70
4.15 am: Child had a fit lasting about 3 minutes, afterwards she had a high
pitched wail, her limbs were rigid, her tongue protruded … P48/m. Child
has been afebrile throughout. Dr notified.
Following the incident at 4.15 am, the child’s doctor came to the hospital
and administered IV Valium and IM Dilantin to control the fitting. He also reduced
the IV fluid order to 60 ml per hour. In doing this he did not look at the
child’s fluid balance chart, as he presumed the child had been receiving what he
had originally ordered (100 ml per hour). Arrangements were also made for
the child to be seen by a specialist consultant later in the morning. This was
done but no definite cause for the child’s condition could be determined at the
time. While investigations were still underway, the child had a cardiac arrest at
approximately 10.00 am the same day, from which she never regained conscious-
ness, and she died a few weeks later, the immediate cause of death being
bronchopneumonia.
Comment
At the coroner’s inquest which followed, the major allegation raised by the rela-
tives’ legal representative was that the real cause of the child’s death was the excess
fluid negligently administered to the child by the nursing staff. It was stated that
the excess fluid resulted initially in cerebral oedema with attendant cerebral irrita-
tion, eventual grand mal fitting, electrolyte disturbances, cardiac arrhythmia and
finally cardiac arrest. Allegations of mismanagement were also levelled against the
medical officers involved, because of their failure to detect the fluid overload as the
cause of the child’s problem and deal with it. Certainly, in the absence of any other
extrinsic evidence as to the cause of the child’s death and the expert medical evidence
presented in support of such a proposition, it would appear that the excess fluid
given to the child played a major role in the child’s death. Even assuming that it
had not, this unhappy episode serves to illustrate very clearly the standard of care
expected of nursing staff in such a situation.
In making his formal finding of the manner and cause of death (bronchopneu-
monia following cerebral hypoxia and cardiac arrest) the coroner was extremely
critical of the standard of care delivered by the nursing staff to the child. The areas
of criticism can best be examined as outlined below.
The child’s fluid intake and the fluid balance chart

There can be no doubt that the child’s intravenous fluid intake far exceeded that
ordered. The ward staff were obviously guided in their administration of fluid by
the comments of the registered nurse in the recovery room to give the child ‘as
much as possible in ward’.
In comparing what was done on that occasion against the standard that would
be considered as ‘competent professional practice’ by a registered nurse in the same
clinical situation, ask yourself the following questions:
• Would it be widely accepted as competent professional practice by peer
opinion that a registered nurse would write ‘as much as possible in ward’ as a
patient’s IV fluid order?
71

opinion that a registered nurse working in a children’s ward would accept such
an order as appropriate?
opinion that a registered nurse would seek clarification of such an order from
the relevant medical officer immediately?
opinion that a registered nurse would know the normal daily fluid balance
requirements of children?
opinion that a registered nurse would know that 3 litres of fluid in 20 hours
would be an excessive amount of fluid to give to a child of 6 in most clinical
situations?
• If uncertain as to whether or not the IV fluid intake was or was not excessive,
would it be widely accepted as competent professional practice by peer opinion
that a registered nurse would seek clarification from the relevant medical
practitioner?
In our view, the answers to the questions posed are self-evident. Using this
example, it is important to appreciate that, as far as the law is concerned, it would
be expected that a registered nurse (or midwife) who is nursing children or infants
would be aware of the different fluid balance requirements of children. It would
not be expected that the precise requirements of every age and weight be known
by rote, but that a general knowledge of the difference be known which should
cause a nurse or midwife to be aware of the need to carefully check the fluid balance
regimes of children and, where any doubt existed, that the patient’s treating doctor
be consulted. It would be argued that a registered nurse or midwife would have
received such knowledge as a result of the educational program required to be
undertaken to become registered to practise. Accordingly, if a registered nurse or
midwife is going to work in a paediatric area, the law would presume as being
reasonable and part of his or her professional competence that the nurse or midwife
not only has the knowledge but also applies it.
The child’s observations and the observation chart

The child’s observation chart clearly demonstrates a steady decline in the child’s
pulse rate as well as comments which state either that the child is ‘sleeping’ or ‘rest-
less’. Such observations and comments have to be compared against the comments
in the nurse’s report to the effect that the child is ‘twitching; screaming; [has] eyes
glazed; [is] vomiting bile; obs. satisfactory’ and later ‘vomiting continued, but
twitchings became less — movements generally became more rational. Pupils still
dilated’. The chart also shows that observations were not recorded during some
periods.
In comparing what was done on that occasion against the standard that would
be considered competent professional practice by a registered nurse in the same
situation, ask yourself the following questions:
72

opinion that a registered nurse would not only record the child’s pulse rate but
also note the steady drop in the rate?
opinion that a registered nurse would notify the medical officer of the drop in
the pulse rate?
opinion that a registered nurse would be alarmed or concerned at the signs
and symptoms being exhibited by the child — for example, ‘pupils still
dilated’ — bearing in mind she was a post-tonsillectomy patient?
Once again the answers to the questions posed are self-evident. One of the major
tasks of nursing staff is to take and record observations on a patient so as to indicate
the present state of the patient’s clinical condition and of any worsening or improve-
ment in that condition. As a result of such observations, together with other
methods of clinical investigation, a patient’s treatment and/or medication is gener-
ally determined. It goes without saying that a nurse’s responsibilities in this
area are significant. Important as the taking and recording of a patient’s observa-
tions are, what is more important is understanding the significance of those obser-
vations. Equally, as far as the law is concerned, a registered nurse would, generally
speaking, know the significance of the observations she is taking and recording;
that is, what is normal and what is abnormal having regard to the patient’s condi-
tion. Such knowledge would be presumed to have been received as part of the
registered nurse’s education and training. If the registered nurse is presumed to
have such knowledge it must follow, as a matter of commonsense, that, in the
presence of abnormal observations, widely accepted professional practice would be
that the nurse concerned would notify the appropriate medical officer or senior
nursing staff. That is the standard of care that would be expected in such
circumstances.
EXAMPLE 2: SHA CHENG WANG (BY HIS TUTOR RU BO WANG) V CENTRAL

SYDNEY AREA HEALTH SERVICE30
This matter dealt with the duty of care involving staff, particularly nursing staff,
dealing with people attending the emergency department of hospitals. It examines
and comments upon the role of triage nurses in emergency departments. The rel-
evant facts and findings of the court are as set out below.
Facts
The plaintiff, Sha Cheng Wang, was left seriously and permanently disabled by
irreversible brain damage as a result of an assault perpetrated upon him in April
1988 as he was walking from the railway station to his home. He was struck from
behind by a heavy object and fell to the ground and may have been unconscious
for a short period.
He managed to walk to his home, and two of his friends there took him by taxi
to Royal Prince Alfred Hospital at Camperdown. They waited for some time in the
73
Emergency Department, where they were joined by other friends of Mr Wang. After
some time, and before Mr Wang had been treated, they left and went to the city
Superclinic, which was then on Broadway near Railway Square. There, Mr Wang
was treated by Dr Andrew Katelaris and returned home.
In the small hours of the following morning Mr Wang’s condition deteriorated
and he was taken back to Royal Prince Alfred Hospital by ambulance. It seems that
his skull was fractured. He was suffering from extra dural haemorrhage, and surgical
intervention at that stage was unable to prevent irreversible brain damage.
In the litigation which followed, the court found Central Sydney Area Health
Service liable for Mr Wang’s damage because of the actions of the relevant nursing
staff in the Emergency Department of Royal Prince Alfred Hospital. In doing so,
the judge dismissed allegations of negligence against Dr Katelaris and his employer,
Superclinic Australia Pty Ltd.
As the full facts of the matter disclosed, the reason why Mr Wang left the
Emergency Department and went elsewhere is because he and his friends became
upset and impatient that he was not seen by a doctor within a short time of his
arrival at the Emergency Department. They were worried about his condition, he
was bleeding from his head wound and very pale, but conscious. Mr Wang
had come to the Emergency Department at 9.25 pm and left at approximately
11.00 pm.
In his treatment at Royal Prince Alfred Hospital, Mr Wang was attended to by
a registered nurse.
Mr Wang was seen on arrival by the triage nurse, Registered Nurse Carruthers,
who obtained a brief history and undertook a brief physical examination of him.
Her entry in the patient notes read simply ‘assaulted ? LOC’ and she explained that
the expression ‘? LOC’ meant a possible loss of consciousness. There was no other
notation made of any other neurological observations undertaken by Nurse Car-
ruthers, although she gave evidence that, as part of her initial examination of Mr
Wang ‘he walked into her office unaided and appeared to be alert. She had him
squeeze her fingers to test his hand grip, which she found to be firm and equal. She
checked his pupils by having him close his eyes and open them quickly, and they
appeared to be equal and reacting to light’. It should be noted at this point that the
judge hearing the matter concluded that he found the evidence of Nurse Carruthers
‘unreliable in certain respects’.31
In any event, Nurse Carruthers advised Mr Wang and his companions that the
Emergency Department was busy and they would have to wait. There was evidence
that Mr Wang’s companions later approached Nurse Carruthers on two occasions
expressing their concern about him.
At about 10.00 pm, Nurse Carruthers was relieved by Registered Nurse Jennifer
Smith. Evidence was given that one of Mr Wang’s companions subsequently
approached Nurse Smith to inquire how much longer Mr Wang would have to
wait to be treated. He was told that the department was busy and that a lot
of people were waiting. About 15 minutes later he asked her if they could go
somewhere else for treatment, perhaps at a private hospital, and she said that
they were free to do so. As he put it, she said that ‘we can do whatever we
want to’.32
74
A decision was taken to leave the hospital and seek treatment elsewhere. Mr Wang
and his friends left at about 11.00 pm and Nurse Smith wrote in the notes ‘Did
not wait to be seen’.
When Mr Wang and his friends arrived at the Superclinic he was immediately
seen by Dr Katelaris. There was no criticism or adverse finding as to the treatment
given by Dr Katelaris to Mr Wang as recorded by his clinical notes at the time.
That is:
• Dr Katelaris obtained a full history of the assault.
• He examined Mr Wang and took the full range of neurological tests. He found
no abnormal signs.
• He examined, cleaned and sutured the head wound and administered a tetanus
toxoid injection.
• He advised Mr Wang he should return to the hospital for an X-ray. This was
rejected because of the displeasure at what had occurred earlier.
• Dr Katelaris gave them a ‘head injury advice form’ and went on to explain
what it said, using gestures to ensure that he was understood. He said that an
ambulance should be called immediately in the event of vomiting or
convulsion, if the plaintiff became drowsy or unrouseable, or if they observed
weakness in one or more of his limbs or inequality in the size of his pupils. He
told them that the plaintiff should not be left alone. He advised them to take
him to a Chinese-speaking doctor the next morning to arrange for an X-ray
and for any ongoing care which might be necessary.
Mr Wang went home to the flat that he shared with his friends. During the night
Mr Wang started vomiting and convulsing and became unconscious. An ambulance
was called and Mr Wang arrived back at Royal Prince Alfred Hospital by 4.00 am
and underwent surgery, but was left with irreversible brain damage.
Comment
Mr Wang’s case against the hospital was put on two alternative bases. Firstly, it
was alleged that Nurse Carruthers’ examination was inadequate and superficial and
that no notice was taken of his friends’ insistence that Mr Wang needed urgent
attention, so that Mr Wang was not afforded the priority which he deserved. Alter-
natively, accepting that his priority was appropriately assessed, Nurse Carruthers
should have consulted a doctor about him before she went off duty and Nurse Smith
should have done so before the plaintiff left the hospital. In either event, it was said,
some attempt should have been made to dissuade Mr Wang from leaving before he
had been seen by a doctor.
The judge was critical of the actions of both nurses in the terms as expressed
above — particularly Nurse Smith, who did not give any evidence. On the role of
the triage nurse the judge made the following comment:
… it is clear that her task as triage sister was to make a primary assessment
of him with a view to assessing the urgency of his need for the treatment.
That assessment had to be made in the light of the other demands upon the
Department at the time and the available professional resources … Sister
75
Carruthers’ other responsibility was to keep the plaintiff under observation

in the waiting area in case his condition worsened.33
It is clear that Nurse Carruthers gave an oral report to Nurse Smith at the end
of her shift. Mr Wang’s friends continued to request that he be seen by a doctor
only to be met by the statement from Nurse Carruthers and Nurse Smith that the
Emergency Department was busy and they would have to wait. Eventually one of
Mr Wang’s friends, a Mr Ng, inquired as to whether they should seek treatment
elsewhere. On that issue, the judge stated:
I turn, then, to the question which has troubled me most. Should hospital
staff have attempted to dissuade the plaintiff from leaving? I have referred
(at para 21) to the unchallenged evidence of David Ng about his inquiry
whether they might seek treatment elsewhere. I am satisfied that that
inquiry was directed to Sister Smith and that she did not advise them to
wait. It is true that some further time elapsed before they left, and counsel
for the hospital submitted that the staff might have not been aware of their
departure. However, if appropriate observation of the plaintiff in the waiting
area were being maintained, they should have been.
It was common ground that the plaintiff was free to leave and the hospital
staff had no power to restrain him. However, varying views were expressed
by the experts about how the situation should have been handled. Ms Fares
said that normally staff would attempt to persuade a patient from leaving
and would find out how soon a doctor might be available, informing the
medical staff that the patient was becoming restless.34
Another expert medical witness accepted by the judge gave evidence that:
… when patients decide to leave an emergency department without
treatment, staff should attempt to discourage them from doing so. Failing
that, they should try to ensure that they seek alternative medical care. The
practice in the hospital where he worked was that, if it was clear that a
patient could not be persuaded to wait, he or she would be given the names
of medical clinics in the area … the approach of staff to the situation must
be flexible and would depend on a number of variables, including the
clinical presentation of the patient, where the patient intended to go upon
leaving, the demands upon the resources of the department at the time, the
availability of other medical services in the area and their capacity to deal
with the patient’s condition.35
In considering the circumstances in which Mr Wang left the Emergency
Department, the judge came to the conclusion that the Central Sydney Area Health
Service was liable for Mr Wang’s permanent damage, because of the failure of
the triage nurses in Royal Prince Alfred Hospital to properly observe him and
advise him against leaving the hospital. In determining that liability the judge
concluded:
Given the unpredictable effects of head injuries, it was clearly in the
plaintiff’s best interests to remain at the hospital, where there were the
76
resources to observe and respond to any deterioration of his condition. I am

satisfied that, if he had, he would not be in his present predicament.
Sister Smith did not ask Mr Ng where they intended to go, and did not
offer any advice about alternative sources of treatment suitable for the
plaintiff’s condition, should it deteriorate. Indeed there is no evidence that
there was any suitable source at that time of night other than a public
hospital. Sister Smith should have counselled the plaintiff to remain at the
hospital, explaining why it was in his interests to do so.
… Clearly, the primary duty which the hospital owed to the plaintiff was to
assign him his appropriate priority through the triage system and to observe
him in the waiting area in case his condition deteriorated.
The Central Sydney Area Health Service, which administers the hospital, is
a statutory authority whose duty was to take reasonable care for the
plaintiff’s well-being in the circumstances, within the limits of its resources.
In my view, that duty extended to furnishing the plaintiff with appropriate
advice when it was intimated that he might leave the hospital. The hospital
failed to discharge that duty, and the plaintiff’s present condition is
attributable to that failure.36
The question as to whether Mr Wang and his friends would have accepted the
advice to remain at the hospital if spoken to in those terms had to be determined.
Mr Wang was unable to say because of his incapacity. The judge did consider the
evidence of his friends who were with him on the night in question and came to
the view, on that evidence, that he would have.
EXAMPLE 3: MCCABE V AUBURN DISTRICT HOSPITAL37

This case is a very good illustration of how the death of a person in hospital can
give rise to a coroner’s inquest into the manner and cause of death and, subsequently,
a civil action alleging negligence on the part of the medical and nursing staff
involved in the person’s care.
The incident giving rise to this decision occurred in a public hospital in New
South Wales in 1981. The case is also referred to in Chapter 7 to highlight the
importance of proper record-keeping by nursing staff.
The relevant facts are set out below.
Facts
Mr McCabe was a 21-year-old man admitted to hospital for an emergency
appendicectomy. Post-operatively he did not make the expected uneventful recovery.
He could not keep food or fluids down, he developed diarrhoea and a spiking
temperature pattern, and he complained of excessive abdominal pain. A chest X-ray
and a microurine were ordered and proved negative. On the morning of the fifth
post-operative day, which was a Saturday, the registrar was doing his rounds prior
to going off duty but remaining on call at home over the weekend. The patient was
still exhibiting the same symptoms. The registrar ordered a full blood count to be
77
done that morning. The blood was taken and the result returned to the ward that
afternoon after the registrar had left the hospital. The result disclosed a significantly
raised white cell count and other abnormal readings indicative of some form of
severe infection. The registered nurse on duty filed the pathology result in the
appropriate place in the patient’s record and did not attempt to contact the registrar.
Likewise, at no time during the weekend did the registrar ring the ward to ascertain
Mr McCabe’s results. None of the other registered nurses who came on duty that
weekend noticed the pathology result.
Not only were the nursing reports written separately from the medical officers,
but the nursing staff who came and went over the weekend relied on the verbal
handover report received at the commencement of each shift.
The result did not come to light until Monday afternoon when the patient’s
condition was considerably worse. The patient was immediately placed on IV anti-
biotics and was subsequently returned to theatre for an exploratory operation and
found to have widespread peritonitis. He died a few days later after succumbing to
renal failure.
The young man’s mother sued the hospital and the hospital staff for negligence
in the care of her son and sought compensation for loss of income dependence
under the Compensation to Relatives Act 1897 (NSW) as well as nervous shock. On
the basis of the facts as outlined above, and the evidence presented, the judge upheld
Mrs McCabe’s claim against the hospital and its staff. The hospital acknowledged
their vicarious liability for the actions of its medical and nursing staff at the outset
of the case.
In arriving at his conclusion of negligence on the part of the hospital and its staff
the judge saw fit to make critical comment on the accuracy and reliability of the
medical and nursing notes particularly having regard to evidence given by other
patients and Mr McCabe’s friends and relatives as to his deteriorating condition.
The following extracts on this issue appear in his Honour’s judgment:
I am of the view that the hospital notes are not, in the current case, reliable.
In particular there is unreliability in recording the manifest and observable
continuing deterioration of the deceased’s condition. I am satisfied that the
routine temperature checks even if accurate as to scale were accompanied by
failure to note what was there to be seen, namely that the deceased was
perspirant and ‘hot’. This was evident even to non-medical appreciation …
I do conclude … that there were things significant in assessing the patient’s
deterioration which were overlooked and the written record simply does not
truly reflect the currency of events.38
And further:
It follows that the ability of the (medical staff) to perceive the deterioration
in the patient’s condition was inhibited by the inadequacy of the clinical
and nursing notes.39
And again:
It would be apparent from my earlier findings and remarks that I conclude
that the clinical and nursing notes were deficient. Their inadequacy must
78
have been a major factor in bringing about a situation which allowed the
patient’s condition to deteriorate fatally without timely remedial treatment.40
Comment
The above comments and findings by the judge emphasise the standard that the
law would expect of nursing staff in the accurate and timely recording of a patient’s
observations and overall clinical condition.
However, in our view, the sequence of events that arose in the care of Mr McCabe
does raise the important question of whether or not the standard of care expected
of the ordinary reasonable competent registered nurse in the performance of his or
her duties would extend to notifying the medical officer of abnormal pathology
results, or indeed of any pathology results. The answer, as always in such a situation,
would depend on the facts and circumstances, supported or otherwise by expert
opinion from professional nursing peers as well as any relevant nursing policies or
protocols in place in the health service or hospital.
There is no doubt that registered nursing staff in particular, as part of their study
of normal and abnormal pathology, are familiar with a wide range of commonly
used clinical and biochemical indicators of the abnormal. In the more highly
complex and technical areas of medicine, that would not necessarily be so. However,
in the incident described in this example, it would, we suggest, be readily conceded
that a registered nurse would recognise an abnormal white cell count and appreciate
its significance, to the extent that it was probably indicative of some type of severe
infection. The fact that a pathology result is abnormal does not of itself signify the
necessity for somebody to be contacted immediately, as many patients in hospital
will routinely show abnormal pathology results as part of their disease process.
What is probably significant in considering this issue is the reason why, and the
circumstances in which, a particular pathology test is ordered. In the normal situ-
ation, pathology tests are ordered as deemed necessary by the patient’s medical
practitioner, and the results of such tests are returned to the medical practitioner.
In hospitals, pathology results are routinely screened on a Monday-to-Friday basis
by the medical officers concerned, as they are returned. On weekends or night duty,
when medical officers are rostered on call for emergencies only, it is not uncommon
for them to be contacted by nursing staff to relay abnormal pathology results fol-
lowing tests that have been ordered to be done during the night or on weekends
for a variety of reasons. As a consequence of the pathology result, it may be neces-
sary for the medical officer to initiate treatment and/or medication or make a change
to the patient’s treatment and/or medication. In the latter situation it would be
difficult for a registered nurse to argue that the standard of care expected of them
did not extend to notifying the medical officer concerned of pathology results that
the nurse knew to be abnormal, when they knew the medical officer would other-
wise not receive them for some time, and when the tests had been ordered to be
taken at a time when the medical officer would not normally be present to receive
the result.
As indicated earlier, each situation would be determined having regard to its own
particular facts and circumstances, but if a nurse is faced with such a situation any
79
doubts should be resolved by notifying the result to the relevant medical officer.
Obviously, notifying the result should be accompanied by an entry to that effect in
the patient’s record.
In hospitals, procedural guidelines may assist in resolving the majority of prob-
lems which arise in this type of situation.
EXAMPLE 4: NORTON V ARGONAUT INSURANCE COMPANY41

This example occurred in Louisiana in the United States some years ago but imparts
a significant lesson to all nurses concerning the standard of care expected in the
administration of medication.
Facts
A 3-month-old infant was admitted to the paediatric ward of a hospital for
investigation and treatment for congenital heart disease. On admission his medical
practitioner wrote the following medication order on the patient’s medication sheet:
Elixir Paediatric Lanoxin 2.5 cc
[0.125 mg] 6qh x 3 then once daily.
The child remained an in-patient for a couple of weeks and received the medica-
tion of Paediatric Lanoxin elixir as ordered.
One day, the medical practitioner examined the child and changed the medica-
tion order for the Lanoxin to one dose only and he wrote the change of order in
the patient’s record as follows:
Give 3.0 cc Lanoxin today for 1 dose only.
On the day on which the order was changed, the paediatric ward was particularly
busy, with only one registered nurse and one enrolled nurse on duty. Mrs Evans
was a registered nurse as well as the assistant director of nursing on duty that day.
As part of her responsibilities she was required to provide assistance to ward staff
when necessary. On this particular day, she went to the paediatric ward to assist
and while checking the patient’s records she noticed the change of order for 3 cc
of Lanoxin, in which the form of medication or route of administration had not
been specified. The medication had not been given, so Mrs Evans decided to admin-
ister it herself. Although a registered nurse for many years, she had been out of
clinical nursing for some time and she was unaware that Lanoxin was manufactured
in elixir form as well as injectable form. Recognising that 3 cc was a large dose to
be given intramuscularly, Mrs Evans did consult two other doctors who were present
in the ward at the time about the medical practitioner’s order. They were unable to
assist, as neither was the child’s doctor. They advised that she should follow the
written instructions. At no time did Mrs Evans contact the child’s doctor. Mrs Evans
then made a decision to give the child 3 cc of intramuscular Lanoxin, which was
five times the strength of the paediatric elixir. A little over one hour after receiving
the injection the child died.
The child’s parents brought an action against the hospital and the doctor for
negligence. The court determined that the doctor was negligent for writing an
80
unclear medication order. The court also found that Mrs Evans failed to meet the
standard of care required of a registered nurse and said:
As laudable as her instructions are conceded to have been on the occasion in
question, her unfamiliarity with the drug was a contributing factor in the
child’s death. In this regard we are of the opinion that she was negligent in
attempting to administer a drug with which she was not familiar … Not
only was Mrs Evans unfamiliar with the medicine in question but she also
violated what has been shown to be the rule generally practised by the members
of the nursing profession in the community … namely, the practice of calling the
prescribing physician when in doubt about an order for medication.42 [emphasis
added]
Comment
The lesson to be learned from the above example is that any nurse or midwife who
is uncertain about a medication order must take all reasonable steps to contact the
prescribing doctor for clarification. If a reasonable effort fails to locate the prescribing
doctor, the nurse or midwife should seek the assistance of a person able to assist or
give appropriate directions; for example, a clinical manager, supervisor, another
doctor familiar with the patient or an administrator able to obtain the assistance of
another doctor. In hospitals with pharmacies, the pharmacist may be able to help a
nurse or midwife resolve conflicts over drug dosages. However, such an avenue
should be pursued only when all efforts to locate the patient’s medical practitioner
have failed. To overcome difficulties of this kind, hospitals should have very clear
guidelines as to what steps staff should take in order to clarify a medication order if
the patient’s medical practitioner cannot be contacted within a reasonable time.
EXAMPLE 5: ISON V NORTHERN RIVERS AREA HEALTH SERVICE43
This matter arose as an application for the reinstatement of the applicant to the
position of Clinical Nurse Consultant in Women’s Health with the Northern Rivers
Area Health Service. However, the facts of the matter and the findings made by the
court bear specifically upon the standard of care expected of a registered nurse acting
in the position of Women’s Health Nurse.
Facts
Nurse Ison commenced employment in February 1987 as a Clinical Nurse Con-
sultant with the Northern Rivers Area Health Service based in northern New South
Wales.
Her major responsibility in that position was the taking of Pap smears from
patients who attended the clinics she conducted, forwarding those smears to the
Pathology Department of Westmead Hospital in Sydney and receiving the results
back from that hospital and notifying the clients of those results. It was also her
responsibility to maintain various medical records in relation to those activities
including the Pap Smear Register. As a result of a complaint made by a client of
Nurse Ison’s in 1995, an investigation revealed that there were 18 different cases
wherein Nurse Ison had failed to notify clients of Pap smear results where that
notification should have been made. There were a further five cases where there was
81
a failure to notify particular clients of the need to attend for a re-smear because of
some uncertainty in the original Pap smear result and there were additionally 20
files that had been randomly extracted by the employer that demonstrated poor
documentation of clients’ medical records kept by Nurse Ison.
As a result of all of those matters and a general dissatisfaction in Nurse Ison’s
performance as a Clinical Nurse Consultant in Women’s Health, she was dismissed
from her employment in December 1995. Nurse Ison disputed that decision and
sought her reinstatement before the Industrial Relations Court of Australia. She was
unsuccessful in that application on the basis that she had been treated fairly in the
way in which her employer had gone about investigating the complaints made about
her work and then procedurally dealing with those matters as well as giving her the
opportunity to respond to the allegations.
At the outset it should be said that Nurse Ison did not, by and large, dispute the
nature of the complaints made against her as detailed above. Instead she raised in
her defence the fact that she found herself, as she perceived it, operating in circum-
stances where she needed additional assistance to help her do her job and that she
was doing the best she could in all the circumstances. That was not a view that was
supported by the court and, in coming to the view they did, the court made a
number of findings relevant to the question of the standard of care that would have
and should have been expected of Nurse Ison in her position.
It was conceded on behalf of Nurse Ison that the status of Clinical Nurse Con-
sultant is the highest rank a nurse practitioner could achieve in clinical nursing in
New South Wales, requiring and providing as it did an advanced level of nursing
practice involving a senior level of knowledge, initiative, responsibility and account-
ability. There was evidence that Nurse Ison operated in an autonomous fashion as
a sole practitioner in the field of women’s health in her geographical area.
It was stated by Nurse Ison that when she first commenced in the position, in
relation to the taking of Pap smears between 1987 until 1994, she advised her clients
in the following terms:
If you don’t hear from me regarding your Pap smear result, everything is
okay. If I need to contact you about your Pap smear for reassessing it to be
unsatisfactory, I will do so by telephone or letter. The results will take 3 or 4
weeks to return to me.44
It would seem that from 1994 onwards, as a result of some procedural changes
concerning both the categorisation of Pap smear results and the steps to be taken
as to the notification of those results, Nurse Ison advised her clients in words to the
effect of:
I will contact you by letter if your Pap smear is fine. If not I will be
contacting you by phone.45
The problem seems to be that, while that may well have been the intention of
Nurse Ison, she did not observe that procedural standard and also failed to properly
maintain her clinical records. For example, one of the clients who attended Nurse
Ison at her clinic told the court that she first attended the Women’s Health Clinic
in April 1994 and Nurse Ison had performed a Pap smear. At that time the client
82
had taken with her a letter from her specialist gynaecologist outlining her previous
history that had stated, relevantly, that she had been treated in 1993 for a CIN
lesion of the cervix using radical diathermy and advising that any recurrence of
abnormal smears would need to be investigated by colposcopy.
This client told the court that, at the time she attended the clinic, Nurse Ison
had told her that she would be notified ‘either way’ of her Pap smear results if there
was something abnormal or that she would get a letter in the mail. Suffice to say
that the particular client heard nothing despite making both verbal and telephone
inquiries to the applicant in 1994 and in 1995. Indeed the client attended the clinic
in June 1995 for a further Pap smear consultation and when she inquired as to her
last Pap smear results she was told by Nurse Ison that ‘it was fine’. Again the client
was told that the same procedure would apply; that is, if there was a problem, Nurse
Ison would contact her personally and that otherwise notification would be by letter.
The client heard nothing until she was contacted by another nurse in July 1996
advising her that her Pap smear result had come back showing inflammation and
suggesting that she should see a gynaecologist. Further inquiries by the client at
that time via her general practitioner alerted her to the fact that there had been a
problem with the result of her 1994 smear. As the court heard:
… [the client] was horrified at what she had learned and promptly visited
her own gynaecologist and had treatment … she was extremely emotional
and was of the opinion that ‘she was going to die’.46
That particular client’s experiences and the failure to notify her of her Pap smear
results became the initial complaint against Nurse Ison.
There was evidence given in the course of the case seeking Nurse Ison’s reinstate-
ment that this particular client had commenced civil litigation against the Area
Health Service relying on the negligence of Nurse Ison as their employee. It was
disclosed during the course of the reinstatement hearing that the civil litigation had
been settled in favour of the client.
When the extent and scale of Nurse Ison’s failure to record and properly advise
clients of Pap smear results became evident, and when proper investigations had
been undertaken by her employer, her services were ultimately terminated.
Comment
In the hearing to consider her application for reinstatement, and having regard
to all of the evidence as to the actions of Nurse Ison over a period of time in her
position as Women’s Health Nurse, the court had this to say:
Having considered the protocols in place at the time … it is a finding of
this court that the applicant would have been more than aware of her direct
and personal responsibility to both maintain correct and current medical
records, and to notify women clients of health threatening pap smear
results. Further, that obligation fell directly to her. The evidence shows that
in addition to not following the set protocols, on occasion, the applicant
failed to follow her own methodology regarding notification procedures. Mr
Schofield described a sole practitioner is (sic) one who works unaided,
83
without the assistance of another medical officer along side. It is my view

that implicit in that definition is the understanding that the sole
practitioner would be capable of applying all relevant regulations and
requirements pertaining to that particular profession, and in that regard the
applicant should have been capable of maintaining a correct filing system,
with due attention paid to the correct recording of pathology results. The
evidence did not bear that out. The court heard evidence of files entitled
‘lost files’, ‘lost reports’ and ‘to contact’, illustrating a less than professional
approach to the serious responsibility personal to her.47
On the issue of whether or not Nurse Ison had sufficient resources and facilities
to enable her to do her job according to the standard expected, the court had this
to say:
Ms Ison had access to sufficient facilities to enable a better standard of
client notification be maintained than the one she in fact maintained during
the course of her employment. A review was conducted by her employer of
a large sample of files. No evidence was produced indicating other women’s
health nurses failed as Ms Ison did to meet the standards set in the various
protocols.48
In short, the court found:
… the actions of Ms Ison did not fall solely into the category of ‘errors of
judgment’ but neglect of duty on several occasions which potentially could
be life threatening to the women patients and accordingly it is the finding
of this court that the employer did have a valid reason to terminate Ms
Ison.49
EXAMPLE 6: LANGLEY V GLANDORE PTY LTD (IN LIQUIDATION)50

The history of this matter is somewhat unusual, but it serves as a very good example
of the standard expected of nurses in operating theatres. In coming to their decision
the Court of Appeal judges made specific reference to the Australian Council of
Operating Room Nurses (ACORN) Standards for nurses working in operating
theatres.
Facts
The background to this matter concerns a woman who was operated on for an
abdominal hysterectomy at Mt Isa, Queensland, in February 1990. After the opera-
tion it became apparent, as a result of certain symptoms suffered by the woman,
that a surgical sponge had been left inside her abdomen. The painful symptoms
manifesting this fact were such that she was required to undergo a further operation
some 10 months after the first operation to have that sponge removed. The
woman sued the doctor who performed the operation as well as his assistant, and
also sued the private hospital in Mt Isa, who operated under the corporate name
of Glandore Pty Ltd, as the employers of the nursing staff who assisted at the
operation.
84
When the matter came for hearing in the first instance it was heard before a judge
with a jury. Juries in civil actions are rare. In most states and territories of Australia,
with the exception of defamation cases, there is generally little provision for juries
in civil matters. However, in this case there was. It was their task after they had
heard all the evidence to determine who, of all of the parties sued by the woman,
had been negligent in leaving the sponge in her abdomen. The jury found that the
doctor and his assistant had been negligent but the nursing staff, regarding their
responsibility for counting sponges, had not been negligent.
The two doctors who had been found negligent believed that the decision of the
jury was contrary to all of the evidence that had been given, particularly in relation
to the nurses’ responsibility for the checking and counting of sponges. They argued
that the jury verdict was perverse, unreasonable and contrary to all of the evidence
considered in its totality. The two doctors appealed against the decision, arguing
that the employer of the nurses, Glandore Pty Ltd, should be made vicariously liable
for the negligent actions of the nurses in this matter.
Comment
In delivering the judgment, the Court of Appeal agreed with the argument of
the two doctors and upheld their appeal. In doing so, the court found that the
nurses had been negligent by failing to properly account for and record the number
of sponges used during the operation. In coming to that view, the Court of Appeal
said, relevantly, as follows:
At the trial it was not in contest that it was as a result of negligence on the
part of one or other of those involved in the operation, that the sponge had
been left inside the patient’s body, and it was not in contest and it could
hardly have been contested that an incorrect count had been made by the
nurses … the nurses clearly, under the procedure described, had the primary
responsibility for making an accurate count to ensure that all of the sponges
used had been recovered from the plaintiff’s body …
The relevant established standard for ‘counting of sponges, swabs,
instruments and needles’ is called the ‘ACORN’ standard and it supports
the description of the duties that has been outlined above … At the trial,
Nurse Kirvisneimi accepted that she and her fellow nurse had made a
counting error and she was unable to suggest how it had occurred. None of
the witnesses had a recollection of anything untoward occurring in the
course of the operation.51
A suggestion made in the course of the initial hearing before the judge and jury
was that an emergency may have arisen that could have justifiably distracted the
nurses from their counting duties. But as the court found, there was no support for
this in the evidence. As the court stated:
… if some emergency, of which there was no evidence, had called for an
urgent supply of sponges, the nurses were not relieved of the duty of
maintaining an accurate count. It was accepted that if their count was
interrupted, they were to recommence it at the point where they had left it.52
85
The court found that Dr Langley, as the main surgeon in the case, had been
negligent in that he had failed to retrieve the sponge at the conclusion of the opera-
tion and had failed to identify from the plaintiff’s continuing symptoms that a
foreign object had been left inside her body. The court did not accept that he should
bear the full and total responsibility for what was clearly the responsibility of the
nurses during the operation; that is, the proper recording and accounting
for the sponges used in the operation. Accordingly, the Court of Appeal overturned
the decision of the jury because they said that the evidence ‘in its totality pre
ponderates so strongly against the conclusion favoured by the jury that it can
be said that the verdict is such as reasonable jurors could not reach’.53 In
coming to that decision the court said that the nurses had been negligent in that
they had:
… failed to identify the fact that an abdominal pack had been left inside
the plaintiff at the conclusion of the surgery.54
As a result of that finding, the Court of Appeal allocated a proportion of the
damages against the nurses’ employer.
EXAMPLE 7: ELLIOTT V BICKERSTAFF55

The facts of this case are not dissimilar to the one immediately above involving as
it did a swab left inside a patient following a hysterectomy and colo-suspension.
At the initial trial of the matter, the judge said that while the surgeon, Dr Elliott,
had not been personally negligent, he should be held liable for the negligent act of
leaving the sponge in the patient because he was responsible for the overall care of
the patient and he could not delegate that responsibility.
Dr Elliott appealed that decision and argued that he should not be made liable
for the negligent actions of the nursing staff in the checking and accounting for
sponges and that he was entitled to rely on the theatre staff when they told him the
count was correct. There was evidence of his routine procedure in such operations
in the following terms:
Dr Elliott, whilst frankly conceding that he has no independent recollection
of the hysterectomy performed on the 13 June 1991, gave evidence as to the
invariable procedures followed and insisted upon by him during the course of
his surgical career. He said that a record is made of instruments, swabs and
surgical sponges available prior to the commencement of any surgery. The
responsibility for recording the relevant details rests upon the Theatre Sister
who is, of course, an employee of the hospital, not of Dr Elliott. After
completing the surgical procedure and before closing the peritoneum, Dr
Elliott’s practice was to remove the retractors used in the operation manually,
explore the abdominal cavity for any swab or surgical sponge and require
confirmation by the Theatre Sister that all instruments, swabs and sponges
were accounted for. After closing the peritoneum and before closing the
patient’s skin, Dr Elliott said that his practice was again to require the Theatre
Sister to confirm that instruments, swabs and sponges had been accounted
for. There is no reason to suppose that Dr Elliott failed on the 13 June 1991
86
to follow his normal procedures. It is however, to be inferred that there was

a miscount or error by the Theatre Sister or a nurse subservient to her which
resulted in unfounded assurances being given to Dr Elliott.56
The court accepted that the above procedure was one that Dr Elliott would have
followed on the day in question. Certainly there was no evidence to suggest other-
wise. On that issue the court concluded that Dr Elliott:
… did not undertake the provision of nursing services before or after the
operation; they were to be provided by the hospital.57
Accordingly, the court found:
… [Dr Elliott] was entitled to rely on the theatre staff in the customary
way, and on the evidence in this case I do not think that his duty of care
relevantly extended beyond feeling for sponges in the abdominal cavity and
asking whether the sponge count was satisfactory. It follows that in my
opinion, Dr Elliott was not in breach of a non-delegable duty of care by
reason of the negligence of the theatre staff.
In the manner in which surgery of the kind undergone by the respondent is
performed, the patient receives the attention of a team: the surgeon, the
anaesthetist, and theatre staff. There is divided responsibility. The surgeon
can be regarded, in the phrase used by the respondent’s counsel, as the
master of ceremonies, but he is nonetheless a member of a team and reliant
on the due discharge of their responsibilities by the other members of the
team. He should be able to concentrate on his own skilled task without
shouldering the responsibilities of other members of the team.58
Comment
The two cases immediately above highlight the independent professional respon-
sibility of nurses and midwives to maintain their clinical competence notwithstand-
ing that they may be working in a team environment. It cannot be expected, as a
general proposition, that a medical officer be professionally and therefore legally
responsible for ensuring that the clinical standards of the nurse or midwife working
alongside him or her is in accordance with competent professional nursing or mid-
wifery practice. As always it would depend on the facts and circumstances of the
situation under review.
EXAMPLE 8: CORONER’S INQUEST INTO THE DEATH OF SAMARA LEA HOY59

This matter concerns the death of a child shortly after birth and focuses on the
actions of the midwives and the obstetrician involved in the care of the child’s
mother during labour and the resultant death of the child shortly after birth.
The child, Samara Lea Hoy, was born on 8 November 2008 at the John Flynn
Hospital in Queensland. The child was delivered by Ventouse extraction after a
prolonged second stage labour and died shortly after birth. Because of the circum-
stances surrounding the death of the child it was a ‘reportable death’ and a coroner’s
inquest was necessary.
87
During her pregnancy Mrs Hoy had been managed by her obstetrician,
Dr Trueman. Her pregnancy was largely uneventful and according to the evidence
given at the inquest, ‘Mrs Hoy did not discuss with Dr Trueman the question
of assisted birth or intervention’. She did attend antenatal classes facilitated by one
of the midwives where natural birth was emphasised as the preferred method of
delivery.
Mrs Hoy presented at the hospital at 6.15 pm on 7 November 2008 in established
labour. It was a weekend. Dr Trueman was not on call and his patients were being
cared for that weekend by Dr Doolabh. Prior to 7 November 2008 Dr Doolabh
had never met Mrs Hoy. He did see Mrs Hoy at about 7.00 pm shortly after her
admission to the hospital and then left to go home and be on call as required.
On admission Midwife Fennell undertook a baseline CTG for ‘less than five
minutes’. This was in breach of the hospital’s policy dealing with ‘Assessment and
Management of First Stage of Labour’ which required the admitting midwife,
Midwife Fennell, to obtain a baseline CTG observation for a minimum of 10
minutes. As well, during the inquest, Midwife Fennell and the midwife in charge
at the time, Midwife Peller, accepted that a period of 20 minutes or more was
required to obtain a good ‘reassuring’ CTG trace. There was some evidence that
Mrs Hoy was not comfortable with the CTG monitor and it was removed shortly
after her admission. On that point, according to the coroner:
Mrs Hoy said in her evidence that she was not encouraged to continue with
the CTG. I am prepared to accept Mrs Hoy’s evidence that she was not told
the CTG was necessary for the welfare of the baby. Midwife Fennell failed
to record Mrs Hoy’s refusal to continue with the CTG.
I find that if it had been explained to Mrs Hoy that a CTG was necessary
to assess the on going welfare of her baby, she would have had no hesitation
of (sic) accepting any discomfort of the CTG and adopted the procedure.60
The clinical guidelines adopted by the hospital required CTG monitoring to be
undertaken in the presence of certain risk factors. The partogram completed by
Midwife Peller during the evening indicated a rising base line in the baby’s foetal
heart rate from the time of Mrs Hoy’s admission from 125 bpm at 6.30 pm to
140 bpm at 9.30 pm and 150 bpm at 10.00 pm. Despite that, no steps were taken
by the midwives to undertake continuous CTG monitoring despite the monitor
being readily available in the labour ward and despite the midwives attending to
Mrs Hoy that evening agreeing, at the inquest, that foetal tachycardia was one of
the indicators that triggered the need for continuous CTG monitoring.
At 10.30 pm, Midwife Fankhauser took over the care of Mrs Hoy. No foetal
heart rate monitoring had been undertaken between 10.00 pm and 10.30 pm. At
10.30 pm Midwife Fankhauser was aware that Mrs Hoy was fully dilated and in the
second stage of labour. The foetal heart rate was noted to be 170 bpm. Midwife
Fankhauser noted that recording on the second stage document but charted the
foetal heart rate at less than 145 bpm on the partogram. No other foetal heart rate
recordings were charted after that time despite the hospital’s policy requiring this to
be done. In considering Midwife Fankhauser’s actions at this point, the coroner said:
88
The foetal heart rate, as recorded by Midwife Fankhauser at 10.30 pm,

when noted against the rising base line on the partogram graph, indicated a
clear need to undertake continuous CTG monitoring and inform the
obstetrician. This was not done. The assessment and management of second
stage labour policy required a continuous CTG to be undertaken in cases of
foetal heart recordings above 160 bpm. Midwife Fankhauser failed to do
this … [and] failed to follow the normal labour/use of partogram policy.
She failed to accurately record the foetal heart rate recordings taken at 10.30
pm or thereafter record the foetal heart rate measurements as required.61
The coroner further commented on Midwife Fankhauser’s actions that evening
as follows:
Another cause for concern was Mrs Hoy’s slow progress. This gave another
reason for continuous CTG. Given … that Mrs Hoy had no sign of
progress after one hour in the second stage, and the policy of the hospital
dictated that the obstetrician should be called in such cases; given the rising
foetal heart rate trend as recorded on the partogram and witnessed by
Fankhauser, there could be no other conclusion that a continuous CTG
monitoring should have been undertaken at 11.30 pm or prior. The above
facts cause me to conclude Midwife Fankhauser was derelict in her duty as a
midwife. At about midnight, Midwife Fankhauser noted the presence of
meconium. This is a sign of foetal distress and again warranted the use of a
continuous CTG in accordance with the hospital policy … There was a
systemic break down in the managing of Mrs Hoy’s labour … Failure to
adequately monitor the foetal heart rate was more than likely a cause of
death for baby Samara. Had CTG monitoring been utilised and the
partogram completed, as required, in all probability intervention may have
resulted in the safe delivery of Samara.62
The professional failures of Midwife Fankhauser in particular were compounded
by the actions of Dr Doolabh when he was finally called at midnight. He attended
the hospital at approximately 12.15 am. He did not undertake any vaginal examina-
tion of Mrs Hoy who by this time had been in second-stage labour for two hours
without progress. According to the evidence, Dr Doolabh adopted a ‘wait and see’
approach with no CTG monitoring and did not attempt to deliver the baby until
1.40 am. He did so with some difficulty by Ventouse extraction at 1.45 am. At
birth, the umbilical cord was wrapped tightly around the baby’s neck and she was
covered with thick meconium. She was pale and hypotonic, her foetal heart rate
had dropped to 40 bpm and she had no spontaneous respiration. Resuscitation was
attempted but was unsuccessful.
In handing down his findings as to the manner and cause of death — birth
asphyxia due to a tight umbilical cord around the baby’s neck — the coroner was
scathing in his criticism of the midwifery staff, Midwife Fankhauser in particular,
as well as Dr Doolabh. He found as follows:
1) Mrs Hoy was not adequately monitored during labour; in particular, there was a
failure to commence a continuous CTG monitoring much earlier than was done.
89
2) The maintenance of medical records was ‘woefully inadequate’. Information

which was required to be recorded was not and recordings of the foetal
heart rate were not made as required and in accordance with hospital
policy.
3) There was a delay in calling Dr Doolabh. He should have been called at
10.30 pm.
4) The delay in calling Dr Doolabh when signs of foetal distress were evident and
when a delivery would have been made much earlier ‘did contribute to the
death of baby Samara’.
5) Dr Doolabh’s response when he was called was inadequate, and as said by his
own peers, substandard.
In relation to Midwife Fankhauser, the coroner said:

Midwife Fankhauser’s management of Mrs Hoy’s labour was inadequate …
there is a sufficient body of evidence to warrant her conduct be reviewed …
[and] which might cause a disciplinary body to conclude that she failed to
provide Mrs Hoy with an adequate standard of care. The disciplinary board
could also conclude that any attempt by Midwife Fankhauser to deliberately
alter the records and in turn mislead the Court indicates that she is not a fit
and proper person to be registered. Accordingly, I direct the material
gathered during these proceedings be referred to the Nursing and Midwifery
Board of Australia for its consideration.63
In addition to referring Midwife Fankhauser’s actions to the registration author-
ity, the coroner further considered the actions of Midwife Fankhauser in deliberately
altering the patient’s labour progress notes. During the inquest, Midwife Fankhauser
admitted that a record of observations initially recorded by her as being taken at
10.30 pm were altered by her some six hours after the child’s death to make it
appear that the observations were taken at 11.30 pm. On that issue, the coroner
referred Midwife Fankhauser’s action to the Director of Public Prosecutions (DPP)
in Queensland for consideration as to whether she should be charged with the
criminal offence of perverting the course of justice. At the time of going to press,
no final decision had been taken by the DPP.
The actions of Dr Doolabh in the care of Mrs Hoy were also referred to his
professional registration body, the Medical Board of Australia.
Comment
This matter demonstrates very clearly how hospital or health service policies in
relation to the delivery of care are not documents that can, or should, be ignored
by staff. They are there for a good reason and invariably, when the care of a patient
is being carefully scrutinised by a court, the policy and procedure documents rel-
evant to the patient’s care as well as relevant professional standards documents will
be subpoenaed. Those documents will then be used for comparison purposes against
the patient’s records, including observation records, to determine if the care actually
delivered to the patient was in accord with the policy and standards documents of
the health service. Any omission, without a reasonable explanation, will be relied
90
upon by the plaintiff’s lawyers as evidence of an inadequate standard of care and

therefore a breach of the duty of care owed to the patient.
Questioning a medical practitioner’s orders
There should be no doubt that a nurse or midwife does have a right and, in most
circumstances, a professional and legal obligation to question a medical practitio-
ner’s orders, if the nurse or midwife believes the treatment ordered is medically
inappropriate or incorrect, or if the nurse or midwife believes the patient has not
been adequately informed about the consequences of the particular treatment.
As well, where a nurse or midwife believes that a patient’s observations and clini-
cal condition warrant further attention and action by the treating practitioner, he
or she should not hesitate to contact him or her and discuss those concerns. This
is particularly important in the post-operative phase and in intensive care or
emergency situations where close monitoring of the patient is vital and any
critical change to the patient’s condition manifested by observation and monitoring
may well be an indication of problems that require attention. The sooner the
problem is identified and acted upon the better. It might be that the treating
practitioner may not consider the matters raised by the nurse or midwife to be of
any great clinical significance and he or she may choose to ignore the concerns
expressed, but it is far better to err on the side of caution when considering whether
to contact a patient’s treating practitioner about any change to a patient’s condition
which the nurse or midwife believes is relevant. A failure to advise the treating
practitioner of critical observations and/or changes to the patient’s condition may
well be a direct cause of the patient’s condition deteriorating to the point where it
is too late to reverse the damage caused. In such circumstances the nurse or midwife
may be deemed to be negligent or to have contributed to the damage caused to the
patient.
There have been cases where the courts, in one form or another, have been critical
of the failure of nurses to express their views on appropriate patient management.
One example of such a situation was a Coroner’s Court inquiry in South Australia
in 1989.64
EXAMPLE: CORONER’S INQUEST INTO THE DEATH OF TIMOTHY JOHN BICE

The deceased was a 21-month-old boy who died in a private hospital in South
Australia from circulatory collapse due to dehydration caused by gastroenteritis.
The child was taken to the medical centre of the hospital early on the Wednesday
afternoon with diarrhoea, vomiting and general lethargy and was seen by Dr H,
who advised the mother that the child was suffering from gastroenteritis and was
slightly dehydrated.
The mother was advised to administer regular oral fluids and Panadol for the
high temperature and told to bring the child back if she continued to be concerned.
The child seemed to improve during the day but suffered a large bout of diarrhoea
at about 6.00 pm and was finally taken back to the hospital by his mother at about
9.30 pm. He was seen by another doctor who noted that he was somewhat dehy-
drated and also had an inflamed throat. The doctor decided to admit the child for
review by the paediatrician on admission. The paediatrician, Dr B, saw the child
91
that evening, made a diagnosis of viral gastroenteritis and ordered regular oral foods
and observation by the nursing staff.
During Thursday the child suffered frequent bouts of diarrhoea and, after 6.00
pm on the Thursday, frequent vomiting episodes. On the Thursday evening the
child became very thirsty, consumed large quantities of fluid, but continued to
vomit and was given Maxolon orally at 9.30 pm and, later, another dose intrave-
nously to attempt to alleviate the vomiting. Dr B saw the child at about 10.00 to
10.30 pm but did not examine the child physically at this stage because he testified
that he had done so earlier. He testified that there was evidence of dehydration at
this stage and that he considered an intravenous drip.
Between 11.00 pm to 2.00 am the condition of the child appeared to stabilise
and, when reviewed by Dr B at 2.00 am, he determined that stabilisation had
occurred because the child had ceased to vomit. However, at 4.00 am and 5.15 am
changes were noted in the child’s pulse and respiratory rates which were not reported
to the doctor. Between 5.40 and 5.45 am the child had a cardiac arrest. The doctor
was notified on two occasions of this event and stated twice that he could not attend.
However, he reversed this decision and arrived at the hospital at 6.45 am by which
time the child had died.
In handing down his findings the coroner was quite critical, amongst other issues,
of the failure of the nursing staff to communicate adequately with the paediatrician,
Dr B, about their concern for the child’s condition on the Thursday evening. He
expressed that criticism in the following terms:
The evidence establishes to my satisfaction that at various times the nursing
personnel were concerned with T’s condition. An approach was made to the
then Director of Nursing, the Witness Sister A. She deposed to this in
evidence and as a result apparently sought an interview with the Chief
Executive Officer of the Hospital … It is perhaps unfortunate, although
understandable, in some respects, that not one of the staff expressed their
concern directly to Dr B and I also gathered the distinct impression that
most, if not all, of the nursing staff nurtured the hope that intravenous
therapy would be commenced some time during the Thursday evening. This
appears to me to be a reasonable inference from the evidence given by the
staff concerned. One staff member no doubt did approach Dr B. I accept
the reluctance of staff members to approach a medical practitioner
expressing his/her concern about a patient, but there are times when this
protocol should be set aside. It is no doubt true that some practitioners may
well resent being approached by a trained sister [sic] in such circumstances
… There is no evidence to suggest that Dr B falls in this category.
Nevertheless, I consider the trained nursing sisters have the requisite
experience to express an opinion concerning a particular patient’s
condition.65
The coroner in this matter went on to recommend that, as a matter of practice,
the nursing staff should communicate their concerns directly with the doctor in
future. He expressed that recommendation as follows:
92
There is no doubt on the evidence of Dr D (an expert witness) that he strongly

supports the view that experienced nursing staff should have no compunction
or hesitation in approaching a medical practitioner in charge of the case if they
(the staff ) are or become concerned about the child’s condition.66
And later:
It is quite clear from the evidence, particularly of Dr D, that trained nursing
staff employed at the Adelaide Children’s Hospital are encouraged to
approach a medical person if they have a concern about a particular patient’s
condition. This is a commonsense approach to the situation and can really
only have beneficial results. I am confident that most, if not all, medical
practitioners would not oppose this practice by trained nursing staff in
hospitals generally.67
OTHER EXAMPLES
Two Canadian cases are also of interest on this point. In one, nurses were found
not negligent in failing to further contact the treating practitioner with their con-
cerns about the condition of a patient’s leg.68 The patient subsequently required an
amputation of his foot. In delivering his judgment on appeal, the judge said that
the reason why the nurses were not negligent was that he accepted the evidence of
the treating medical practitioner that he would have taken no notice of the nurses
even if they had informed him again in relation to their concerns about the patient.
In similar circumstances in another case, the nurses were held to be negligent for
not calling the doctors, again despite the fact that the nurses had been expressing
and documenting their concerns for 3 days.69 The reason why they were held to be
negligent on this occasion, was because the doctors gave evidence to the fact that,
if they had been informed of the patient’s most recent deterioration, they would
have acted.
Comment
The lesson to be learned from the experiences of all of the cases is that, on balance
and if in any doubt, the nurse or midwife should take steps to notify the treating
medical practitioner and express his or her concerns and at the same time make a
written entry in the patient’s record of the action taken.
What has to be addressed is the most appropriate and sensible way for a nurse
or midwife to deal with such matters, given the possibility that such a situation may
get out of hand. In the first instance, as a matter of courtesy and commonsense,
the nurse or midwife should discuss her or his concerns directly and discreetly with
the medical practitioner involved. Whether such an approach would influence the
practitioner to alter the proposed course of treatment would depend very much on
the facts and circumstances, but nevertheless a nurse or midwife is clearly entitled
to raise his or her professional concerns. Indeed, in any situation where a nurse or
midwife is involved with a medical practitioner in patient or client care, a nurse or
midwife is not only entitled to discuss the appropriateness or otherwise of the treat-
ment proposed but is also professionally and legally obligated to do so.
93
For example, if a medical practitioner prescribed a schedule of medications that

a nurse or midwife knew or ought to have known or believed to be excessive or
dangerous to the patient’s wellbeing, then the standard of care expected of the
professionally competent nurse or midwife would be that he or she express the
concerns to the treating doctor. Further, if the practitioner disagreed or refused to
alter the medication order following those discussions, and if the nurse or midwife
still believed that the particular course of medication proposed was incorrect or
inappropriate, then the nurse or midwife would be entitled and, depending on the
circumstances, obliged to express the concerns formally to the appropriate authori-
ties. Equally, the nurse or midwife may refuse to administer the medication, as long
as he or she does so on reasonable grounds.
The mechanisms by which a nurse or midwife would formalise his or her concerns
would vary depending on the circumstances. In a hospital or nursing home, it would
be done using the administrative channels available. Outside of a hospital or nursing
home, it may be necessary to raise such concerns with the relevant state or territory
health authority or medical registration board. If a nurse or midwife formally raises
a complaint concerning the professional competence of a medical practitioner (or
any fellow healthcare professional for that matter) the complaint should always be in
writing, setting out objectively the details of the complaint and the reasons in support
of it. The particular problem that arises in relation to complaints of professional
competence is also relevant in any consideration of the law relating to defamation.
Negligence: Principle 2 — that the defendant’s conduct on the occasion
in question fell below the standard of care expected
If what the defendant did or failed to do fell below the standard of care expected,
the defendant is in breach of his or her duty of care to the plaintiff. Although this
principle may appear to be encompassed within a somewhat long-winded statement,
it follows automatically once the existence of a duty of care and the expected stan-
dard of that care have been established in accordance with the civil standard of
proof. Having reached this stage, the plaintiff has established on the balance of
probabilities:
• that a duty of care exists;
• the standard of care expected as part of that duty;
• that the defendant failed to achieve the standard of care expected in the
circumstances under review.
If that is so, then:
• the defendant is in breach of his or her duty of care to the plaintiff.
The plaintiff must then proceed to establish the next principle.
Negligence: Principle 3 — that, as a consequence of the defendant’s
breach of his or her duty of care to the plaintiff, the plaintiff
suffered damage
Two factors need to be established:
1) that the plaintiff suffered damage — if the plaintiff suffered no damage, no
compensation can be awarded; and
94
2) the damage being complained about is a consequence of the defendant’s

negligent act; that is, there must be a direct or causal relationship between the
damage and the negligent act.
Both issues require careful consideration.
DAMAGE SUFFERED BY THE PLAINTIFF
It has already been stated that it is necessary to establish all the principles in a
negligence action in order to succeed. Therefore, the absence of any damage to the
plaintiff, even in the presence of a clear breach of the duty of care, will preclude
any action from being commenced. In normal circumstances, the administration
of a wrong medication to a patient constitutes a clear breach of the duty of care a
nurse or midwife owes to that patient; the reason being that, as a generally accepted
professional standard, a registered nurse or midwife is not expected to make medica-
tion errors. For example, assume that a nurse had been directed to put glycerine
and acid carbol drops into a patient’s left ear before he was sent home. Assume that
the nurse got the correct drops, but instead of putting them in the patient’s left ear
as instructed she misunderstood and put them into the patient’s right ear. What the
nurse did is obviously in breach of her duty of care to the patient. However, it is
highly unlikely that the nature of the drops she put in the wrong ear was such as
to cause any physical damage to the patient’s right ear. Obviously, if they did, it
would be a different matter, but for the purposes of this explanation it is safe to
presume they did not.
There are obviously other examples where, because of what the nurse does or fails
to do, he or she would be in breach of his or her duty of care to a patient, but the
patient suffers no damage. If there is no damage there can be no action, because it
is for the damage caused that the plaintiff is compensated in a negligence action.
Damage (or harm) in the context of negligence refers to three particular types of
damage which the courts will recognise and, if proved on the balance of probabilities
to exist, will compensate for.
The civil liability legislation of the states and territories refer to ‘harm’ or ‘injury’
and, relevantly, define both. For example, section 5 of the Civil Liability Act 2002
(NSW) defines ‘harm’ as follows:
harm means harm of any kind, including the following:
a) personal injury or death,
b) damage to property,
c) economic loss.
And defines ‘personal injury’ as follows:
personal injury includes:
a) pre-natal injury, and
b) impairment of a person’s physical or mental condition, and
c) disease.
In relation to ‘mental harm’, further definitions are provided. Section 27 of the
Civil Liability Act 2002 (NSW) provides the following definitions:
95
consequential mental harm means mental harm that is a consequence of a

personal injury of any other kind.
mental harm means impairment of a person’s mental condition.
…
pure mental harm means mental harm other than consequential mental
harm.
All of the other states and territories have adopted similar definitions except that
the Northern Territory and Queensland do not define ‘mental harm’. In relation to
the definitions provided relevant to ‘harm’ or ‘injury’ see: Civil Law (Wrongs) Act
2002 (ACT) ss 32 and 40; Personal Injury (Liabilities and Damages) Act 2003 (NT)
s 3; Civil Liability Act 2003 (Qld) Sch 2 (Dictionary); Civil Liability Act 1936 (SA)
s 3; Civil Liability Act 2002 (Tas) ss 3 and 29; Wrongs Act 1958 (Vic) ss 28B and
67; Civil Liability Act 2002 (WA) ss 3 and 5Q.
Mental harm
Mental harm has traditionally been referred to as nervous shock and is an area
of harm that has become increasingly recognised by the courts. In keeping with
developments in this area of medicine, the existence of permanent psychiatric harm
which can be medically established is now acknowledged by the courts as a form
of harm entitling the plaintiff to compensation.
It would be fair to say that up until the Ipp Report and the recommendations
in relation to civil liability law, the High Court had taken an increasingly liberal
view towards claims at common law for psychiatric injury arising from a defendant’s
negligent act. While maintaining that the psychiatric injury claimed had to be a
genuine psychiatric illness and not simply psychological distress, grief or anger, the
High Court emphasised that the main factor justifying recovery for mental harm
in the form of psychiatric injury was reasonable foreseeability.
The recommendations of the Ipp Committee included a winding back of the
High Court decisions in relation to mental harm by advocating a return to what is
known as the ‘normal fortitude’ rule. As a consequence, all states and territories
except the Northern Territory and Queensland have legislated to do so.
In addition to the definition of mental harm and associated terms, section 32 of
the Civil Liability Act 2002 (NSW) provides that the duty of care owed in relation
to mental harm is as follows:
1) A person (the defendant) does not owe a duty of care to another person
(the plaintiff ) to take care not to cause the plaintiff mental harm unless
the defendant ought to have foreseen that a person of normal fortitude
might, in the circumstances of the case, suffer a recognised psychiatric
illness if reasonable care were not taken.
2) For the purposes of the application of this section in respect of pure
mental harm, the circumstances of the case include the following:
a) whether or not the mental harm was suffered as the result of a sudden
shock,
96
b) whether the plaintiff witnessed, at the scene, a person being killed,

injured or put in peril,
c) the nature of the relationship between the plaintiff and any person
killed, injured or put in peril,
d) whether or not there was a pre-existing relationship between the
plaintiff and the defendant.
3) For the purposes of the application of this section in respect of
consequential mental harm, the circumstances of the case include the
personal injury suffered by the plaintiff.
4) This section does not require the court to disregard what the defendant
knew or ought to have known about the fortitude of the plaintiff.
For similar provisions in the other states and territories, see: Civil Law (Wrongs)
Act 2002 (ACT) s 34; Civil Liability Act 1936 (SA) s 53; Civil Liability Act 2002
(Tas) s 34; Wrongs Act 1958 (Vic) s 72; Civil Liability Act 2002 (WA) ss 5S and 5T.
The Northern Territory and Queensland do not define ‘mental harm’.
As well, in New South Wales, Tasmania and Victoria, limitations are placed on
the recovery of compensation for pure mental harm, as section 30 of the Civil Liabil-
ity Act 2002 (NSW) provides in the following terms:
1) This section applies to the liability of a person (the defendant) for pure
mental harm to a person (the plaintiff ) arising wholly or partly from
mental or nervous shock in connection with another person (the victim)
being killed, injured or put in peril by the act or omission of the defendant.
2) The plaintiff is not entitled to recover damages for pure mental harm unless:
a) the plaintiff witnessed, at the scene, the victim being killed, injured or
put in peril, or
b) the plaintiff is a close member of the family of the victim.
3) Any damages to be awarded to the plaintiff for pure mental harm are to
be reduced in the same proportion as any reduction in the damages that
may be recovered from the defendant by or through the victim on the
basis of the contributory negligence of the victim.
4) No damages are to be awarded to the plaintiff for pure mental harm if
the recovery of damages from the defendant by or through the victim in
respect of the act or omission would be prevented by any provision of
this Act or any other written or unwritten law.
…
The same section also defines ‘close member of the family’ and ‘spouse or partner’
in relatively confined terms.
For similar provisions in Tasmania and Victoria, see: Civil Liability Act 2002 (Tas)
s 32; Wrongs Act 1958 (Vic) s 73.
The legislative changes made in most of the states and territories make it harder
for persons to succeed in being compensated for pure mental harm.
97
THE CAUSAL RELATIONSHIP BETWEEN THE DAMAGE AND THE NEGLIGENT ACT
Establishment of this principle requires that there be a direct or causal relationship
between the defendant’s breach of his or her duty of care and the plaintiff’s damage.
This is often referred to as the principle of causation. The breach of the duty of care
must cause the damage, otherwise no compensation will be awarded.
Provision is made in the civil liability legislation of the states and territories
arising from the Ipp Report as to the scope and application of this principle in
determining liability. For example, section 5D of the Civil Liability Act 2002
(NSW) provides:
1) A determination that negligence caused particular harm comprises the
following elements:
a) that the negligence was a necessary condition of the occurrence of the
harm ( factual causation), and
b) that it is appropriate for the scope of the negligent person’s liability to
extend to the harm so caused (scope of liability).
2) In determining in an exceptional case, in accordance with established
principles, whether negligence that cannot be established as a necessary
condition of the occurrence of harm should be accepted as establishing
factual causation, the court is to consider (amongst other relevant things)
whether or not and why responsibility for the harm should be imposed
on the negligent party.
3) If it is relevant to the determination of factual causation to determine
what the person who suffered harm would have done if the negligent
person had not been negligent:
a) the matter is to be determined subjectively in the light of all relevant
circumstances, subject to paragraph (b), and
b) any statement made by the person after suffering the harm about what
he or she would have done is inadmissible except to the extent (if any)
that the statement is against his or her interest.
4) For the purpose of determining the scope of liability, the court is to
consider (amongst other relevant things) whether or not and why
responsibility for the harm should be imposed on the negligent party.
For similar provisions in the other states and territories see: Civil Law (Wrongs)
Act 2002 (ACT) s 45; Civil Liability Act 2003 (Qld) s 11; Civil Liability Act 1936
(SA) s 34; Civil Liability Act 2002 (Tas) s 13; Wrongs Act 1958 (Vic) s 51; Civil
Liability Act 2002 (WA) s 5C.
There is no similar provision in the Northern Territory.
At the outset, readers are advised to refer to the facts and decisions of two cases
discussed in this chapter for further judicial comment on the issue of causation:
Rogers v Whitaker (1992) and Chappel v Hart (1998).70 While both cases turned
predominantly on the issue of a failure by the treating doctor to warn of risks
involved in a particular procedure being a breach of the doctor’s duty of care, the
question of causation was also extremely important to the ultimate outcome. Given
that the doctor was in breach of his duty of care by failing to warn of inherent risks
98
in the treatment being proposed, did that cause the damage the patient ultimately
complained of? In both cases the High Court answered in the affirmative. In doing
so, the judges found that both patients relied on the advice given by the particular
doctor in deciding to go ahead with the surgery being suggested. In both cases the
court found that the respective doctors had failed to give proper advice and warning
to their patients about likely complications from the proposed surgery. The court
was satisfied that, if the patients had known, they would not have had the surgery.
Accordingly, in both cases, a reliance on the respective surgeons’ advice in deciding
to undergo the surgery was a direct physical cause of the damage which subsequently
occurred. In Mrs Whitaker’s case she became totally and permanently blind, and in
Mrs Hart’s case she suffered permanent damage to her vocal cords. As McHugh J
said in Chappel v Hart:
Before the defendant will be held responsible for the plaintiff’s injury, the
plaintiff must prove that the defendant’s conduct materially contributed to
the plaintiff suffering that injury … it would seem logical to hold a person
causally liable for a wrongful act or omission only when it increases … the
risk or injury to another person. If a wrongful act or omission results in an
increased risk of injury to the plaintiff and that risk eventuates, the
defendant’s conduct has materially contributed to the injury that the
plaintiff suffers whether or not other factors also contributed to that injury
occurring.71
The common-law principle of causation in negligence is often referred to as the
‘but for’ test. That is, ‘but for’ the breach of the duty of care alleged, the plaintiff
would not have suffered the damage complained of. That is what is referred to in
section 5D(1)(a) of the Civil Liability Act 2002 (NSW) (and its equivalent provision
in the other states and territories) as ‘that the negligence was a necessary condition
of the occurrence of the harm’, or to express it another way ‘but for’ the breach of
the duty of care the harm would not have occurred.
This principle of causation generally is best illustrated by examining the facts of
a number of matters that have come before the courts both here and in the United
Kingdom. The first is the English case known as Barnett v Chelsea and Kensington
Hospital.72 The relevant facts are set out below.
BARNETT V CHELSEA AND KENSINGTON HOSPITAL

Mr Barnett went to the casualty department of a hospital complaining of nausea
and vomiting following the drinking of tea some hours before. The nurse in casualty
notified the doctor on duty who was also not feeling well and not overly inclined
to want to see patients. He advised the nurse to send Mr Barnett home with instruc-
tions to go to bed and see his own doctor later in the day. Mr Barnett left the
hospital but his condition worsened and some few hours afterwards he died from
what was later discovered to be arsenic poisoning. Mr Barnett’s widow brought an
action against the hospital and the doctor alleging negligence on the part of both.
The decision of the court stated that the hospital had a general duty of care to
all the users of its service to provide a safe and competent service, with safe, com-
petent employees. The standard expected of that duty of care would be that people
99
who present to casualty should have a proper history taken and be examined. The
court stated that this had not been done and accordingly the hospital was liable for
allowing such an unsafe situation to occur through the actions of its employees. It
was also stated that the doctor was in breach of his duty of care to the patient
because he failed to examine the patient — which is what the ordinary, reasonable
doctor in his position would have done in such circumstances.
In this example:
• the duty clearly existed;
• the standard was well-established;
• the breach was obvious;
• the damage was self-evident (Mr Barnett’s death).
However, Mrs Barnett failed in her action because she could not establish that
the breach of the duty of care had caused her husband’s death. It was established
on the evidence that, even if Mr Barnett had been properly examined and a history
taken, and if he had been admitted at the time he came to the casualty department,
he would still have died. Expert evidence supported the view that the likelihood of
the doctor in casualty diagnosing Mr Barnett’s illness as arsenic poisoning was highly
improbable. This evidence was supported by the fact that of the nearly 4 million
people who were admitted to the thousands of hospitals in the United Kingdom
each year, fewer than 60 had arsenic poisoning. Thus, the ordinary, reasonable
doctor could hardly be expected to diagnose arsenic poisoning in the circumstances
being considered. Remember that Mr Barnett was not able to state that he had
taken arsenic because he did not know that fact — he could only recount that he
had been drinking tea. In addition, expert medical witnesses stated that it would
have taken some hours after admission for sufficient investigations to have been
completed to permit the correct diagnosis to be made. By then any treatment would
have had no effect.
The outcome of that evidence, which was accepted by the court, was that even
though the hospital and the doctor were in breach of their duty of care to Mr
Barnett and even though the damage was clear, Mrs Barnett could not succeed,
because the arsenic, and not the breach of the duty of care, had caused Mr Barnett’s
death.
Comment
A hypothetical example of such an outcome might well be as follows. A midwife
who is administering medications in a postnatal ward gives the wrong patient
500 mg of ampicillin. Some 20 minutes or so after taking the antibiotic the patient
has a massive postpartum haemorrhage and almost dies. Eventually, over the next
couple of months, the patient makes a gradual recovery from all of the attendant
medical problems that acute and sudden blood loss can cause. Knowing that she
had been given the ampicillin in error, consideration is given to bringing a claim
in negligence alleging that the administration of the ampicillin was the cause of her
sudden and precipitate postpartum haemorrhage. Clearly the midwife was in breach
of his or her duty of care to the patient by administering a medication not meant
100
for that patient. Using the ‘but for’ test the argument would have to be ‘but for’
the midwife’s administering the wrong medication, the postpartum haemorrhage
would not have occurred. It would be most improbable, in our view, that giving
500 mg of ampicillin to the patient 20 minutes before had caused her postpartum
haemorrhage. Alternatively, if by calling expert medical evidence the patient could
establish, on the balance of probabilities, a causal relationship between the two
events, then the patient would be entitled to rely on the medication error as the
basis for a claim in negligence.
A more recent and interesting example of the importance of causation is to be
found in a case which was decided in England in 1985. The case is Hotson v Fitzger-
ald.73 The relevant facts are set out below.
HOTSON V FITZGERALD
In 1977, when Stephen Hotson was 13 years old, he had an accident at school. He
fell some 4 metres to the ground from a rope on which he had been swinging,
landing heavily on his buttocks. He suffered an acute traumatic fracture separation
of the left femoral epiphysis. He was taken to St Luke’s Hospital at Maidenhead
where his left knee was X-rayed and showed no injury. He was sent home with a
tubigrip elastic knee bandage and told to return in 10 days if necessary. He went
home and continued to suffer great pain. His father took him to his local general
practitioner who simply prescribed tablets. After 5 days at home and still with no
relief from his pain, he was taken back to St Luke’s Hospital and this time they
X-rayed his hip. The fracture was detected and was treated by surgical reduction
and fixation with three pins.
As a result of the injury to his femoral epiphysis at that age, Stephen Hotson
suffered avascular necrosis with resultant distortion and collapse of the epiphysis.
This, in turn, produced increasing deformity of the left hip, shortening of the left
leg and obvious wasting and marked weakness of the whole leg. Opinion was that
osteoarthritis was inevitable. Mr Hotson brought an action in negligence against
the partnership of general practitioners which he had attended after his initial dis-
charge from St Luke’s Hospital and against the East Berkshire Health Authority as
the employing authority for St Luke’s Hospital at Maidenhead. He alleged that their
failure to diagnose his injury immediately following his accident at school had
caused the avascular necrosis of the epiphysis to develop, which then led to his
resultant permanent disability.
The matter did not come to trial until 1985 and at the beginning of the trial
Mr Hotson, by now 21 years old, discontinued the action against the doctors in
the general practitioner partnership and the case proceeded against the East Berk-
shire Health Authority as the employing authority for St Luke’s Hospital at
Maidenhead.
At the outset of the hearing the Health Authority admitted that there had been
a breach of duty by the Health Authority in the conduct of the examination of Mr
Hotson on the day of his accident, as a result of which his condition was not cor-
rectly diagnosed until 5 days later, for which he then received operative treatment
the next day. What the Health Authority would not admit, however, was that the
101
delay in diagnosis of Mr Hotson’s injury caused the damage of which he was now
complaining. The barrister for the Health Authority argued that position on two
grounds:
1) that the initial injury was so severe that avascular necrosis of the epiphysis was
inevitable;
2) that the delay in treatment would not in theory and, as shown by published
medical literature, had not in practice been found to increase the risk of
avascular necrosis.
Naturally enough, considerable expert medical evidence was presented by the

Health Authority in support of their argument based on the above two grounds.
Equally expert medical evidence was presented by Mr Hotson’s barrister in support
of Mr Hotson’s case. The judge himself referred to the conflicting medical evidence
of the experts, which he had difficulty in accepting.
After considering all of the evidence, particularly on the point of causation, the
judge arrived at the following findings of fact:
• Even if the Health Authority had correctly diagnosed and treated Mr Hotson
on the day of the injury, there was a high probability, which the judge assessed
as a 75 percent risk, that Mr Hotson’s injury would have followed the same
course as it in fact had; that is, he would have developed avascular necrosis of
the whole femoral head with all the same adverse consequences as had already
ensued and with all the same adverse future prospects.
• That 75 percent risk of permanent injury that Mr Hotson faced became
inevitable by the admitted breach of the duty of care of the Health Authority
in the conduct of the examination of Mr Hotson immediately following his
injury. Thus, the delay in diagnosis denied Mr Hotson the 25 percent chance
that, given immediate treatment, avascular necrosis would not have developed.
• Had avascular necrosis not developed, Mr Hotson would have made very
nearly a full recovery.
• The reason why the delay sealed Mr Hotson’s fate was because it allowed the
pressure caused by haemarthrosis — the bleeding of ruptured blood vessels
into the joint — to compress and thus block the intact but distorted
remaining vessels. As a result, even if the fall had left intact sufficient vessels to
keep the epiphysis alive (the judge found the first point above possible but
improbable), such vessels would have become occluded and ineffective for this
purpose.
The judge then proceeded to award Mr Hotson 25 percent of the total damages
sum determined, based on the above findings of fact. The Health Authority appealed
that decision and was unsuccessful.74
The courts in Australia have followed the causation principle as enunciated in
the above United Kingdom cases. That principle has now been codified in the civil
liability legislative provisions referred to above and the following case provides an
example of the application of those provisions.
102
FINCH V ROGERS75
This decision of the New South Wales Supreme Court addressed the application of
the ‘but for’ test in the principle of causation and section 5D(1)(a) and (b) of the
Civil Liability Act 2002 (NSW) in particular.
Mr Finch was a musician and music student who was diagnosed with a particu-
larly aggressive form of testicular cancer. Dr Rogers operated to remove the affected
testicle. Following surgery there was a delay of some weeks before steps were taken
by Dr Rogers to follow up the surgery with post-operative monitoring including
blood tests and scans.
When that was done, there was clinical evidence that the cancer had spread to
the abdominal lymph glands and as a result Mr Finch had to undergo an extra cycle
of chemotherapy. Following the additional cycle of chemotherapy he developed
tinnitus, hearing loss and peripheral neuropathy. In bringing his action, Mr Finch
argued that Dr Rogers had been negligent in not adequately explaining the need
for immediate ongoing post-operative monitoring and undertaking the necessary
investigations to determine whether there had been any spread of the tumour.
Because of the delay in that process, Mr Finch had been required to have the addi-
tional cycle of chemotherapy resulting in the damaging and debilitating side effects
that he sustained.
On behalf of Dr Rogers, the breach of the duty of care was admitted, but it was
argued that that breach had not caused the damage Mr Finch complained of. Con-
sequently, in order to succeed, Mr Finch had to show there was a causal relationship
between the breach of the duty owed to him by Dr Rogers and the damage he
sustained. He succeeded in his action and in addressing the issue of causation, and
in particular, section 5D(1)(a) and (b) of the Civil Liability Act 2002 (NSW), of
which the judge said:
The evidence does, to my mind, establish as a probability that the fourth
cycle materially contributed to the disabilities from which the plaintiff now
suffers. But for the fourth cycle, there may have been damage but it
probably would not have been disabling.76
And further:
Addressing the issue of factual causation, but for the breach, and the delay
which was the consequence of the breach, the following can be said: First,
that Mr Finch would probably have been given Indiana BEP chemotherapy
on Monday 30 December 1996 or, at the latest, Monday 6 January 1997.
Second, that on either day, he would have been regarded as a good
prognosis patient. Third, that given his response to chemotherapy (which
was good), he would have needed three cycles, not four. Fourth, that he
would not have suffered the disabling consequences of ototoxicity and
neurotoxicity which were evident after the fourth cycle.
In short, I consider that the defendant’s negligence was a necessary condition
of the harm that ensued (s 5D(1)(a)). I further believe that it is appropriate
that the scope of the defendant’s liability extends to the harm so caused
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(s 5D(1)(b)). The consequences were, in each case, a foreseeable result of the

breach.77
TABET V GETT78
This decision of the High Court of Australia addresses the issue of causation based
on a ‘loss of chance’ in relation to medical treatment. It emphasises the point that,
for a plaintiff to succeed in an action alleging negligence, he or she must establish
each element of the claim in accordance with the requisite standard in civil cases,
that being on the balance of probabilities.
Reema Tabet, a 6-year-old girl, was admitted to hospital on 11 January 1991.
She had recently suffered from chicken pox which had resolved but both before and
after that illness she suffered headaches, nausea and vomiting. She was under the
care of Dr Gett, who made a provisional diagnosis of chicken pox, varicella men-
ingitis or encephalitis.
On 14 January 1991, the young child had a seizure. As a consequence a CT scan
was undertaken. It disclosed a brain tumour that had apparently been present for
the better part of 2 years. The tumour was surgically removed but by that time the
child had sustained irreversible brain damage because of the raised intracranial pres-
sure from the build up of cerebrospinal fluid.
On behalf of the child an action was commenced alleging Dr Gett had been
negligent in failing to order a CT scan on 11 January or 13 January at the latest.
The latter date was identified because on that date the nursing staff observed that
the young child’s pupils were unequal and her right pupil was non-reactive.
In the evidence before the judge who heard the case in the first instance it could
not be established on the balance of probabilities that the taking of a CT scan and
the administration of steroids or the insertion of a drain earlier than was done would
have averted the child’s brain damage. Notwithstanding that, the judge determined
that ‘but for’ the delay in diagnosis and treatment by not undertaking the CT scan
and associated treatment on 13 January rather than on 14 January after the child’s
seizure, the child would have had a 40 percent ‘chance’ of a better outcome and
awarded her compensation.
Dr Gett appealed the decision to the New South Wales Court of Appeal to have
the decision overturned and was successful. On behalf of the young girl, an appeal
was lodged with the High Court. That appeal was unsuccessful and in dismissing
the appeal Kiefel J said:
The appellant is unable to prove that it was probable that, had treatment by
corticosteroids been undertaken earlier, the brain damage that occurred on
14 January 1991 would have been avoided. The evidence was insufficient to
be persuasive. The requirement of causation is not overcome by redefining
the mere possibility, that such damage as did occur might not eventuate, as
a chance and then that it is lost when the damage actually occurs. Such a
claim could only succeed if the standard of proof were lowered, which
would require a fundamental change to the law of negligence. The appellant
suffered dreadful injury, but the circumstances of this case do not provide
104
a strong ground for considering such change. It would involve holding the
respondent liable for damage which he most certainly did not cause.79
On the need for causation to be established on the balance of probabilities the
judge also said:
The common law requires proof, by the person seeking compensation, that
the negligent act or omission caused the loss or injury constituting the
damage. All that is necessary is that, according to the course of common
experience, the more probable inference appearing from the evidence is that
a defendant’s negligence caused the injury or harm. ‘More probable’ means
no more than that, upon a balance of probabilities, such an inference might
reasonably be considered to have some greater degree of likelihood; it does
not require certainty.80
It should be noted that the Civil Liability Act 2002 (NSW) was not relevant to
the outcome in this case as the events grounding the action had occurred prior to
that Act being passed.
Negligence: Principle 4 — the damage that the plaintiff is complaining

about is a reasonably foreseeable consequence of the defendant’s
negligent act
The general proposition here is that the defendant should have to compensate the
plaintiff only for such damage that can be said to be a reasonably foreseeable con-
sequence of the defendant’s negligence. There are some types of damage that the
law will acknowledge the defendant should not have to pay for, because the damage
is too remote a consequence of the defendant’s negligent act; that is, it was not
reasonably foreseeable.
The way this principle was approached by the courts is best illustrated by refer-
ence to two decisions of the Privy Council in the 1960s. These dealt with an appeal
from two matters that originated in Sydney arising from the same facts. At the time,
the Privy Council was the final and superior court of appeal for Australian courts.
The principle that the decisions finally determined was clearly binding on all Aus-
tralian courts. The decisions are reported in the English law reports as: Overseas
Tankship (UK) v Morts Dock & Engineering Co (1961) and Overseas Tankship (UK)
v Miller Steamship Co (1967).81 The relevant facts are set out below.
A vessel called the Wagon Mound was bunkering for oil at the Caltex Wharf in
Sydney Harbour. While doing so, the workers employed on the vessel negligently
spilled a quantity of oil into the harbour. The oil slick that formed eventually floated
over to the Mort’s Dock area of the harbour, where other vessels were moored while
undergoing repairs, which included oxyacetylene welding. Inquiries were made
about the possible dangers of the oil in such an area, but because of the apparently
high flashpoint of furnace oil it was not considered a fire hazard. But the oil did
catch fire, apparently caused by molten metal from the oxywelding dropping into
the water and igniting some floating waste material. The docks and the ships moored
at the docks were extensively damaged by fire. The owners of the dock brought an
105
action against the owners of the Wagon Mound at the time, alleging negligence. The
action failed because the judge in the first instance found that, on the evidence, the
defendants did not know, and could not reasonably be expected to know, that
furnace oil was capable of igniting in the particular circumstances that it did. The
judge’s finding was upheld in the appeal to the Privy Council.
The principle enunciated here was not only that damage had to be foreseeable
but the ‘particular type’ of damage which the plaintiff was complaining about had
to be foreseeable. In this example, the court was saying that although damage from
the oil fouling the dock area was foreseeable, damage by fire was totally different in
kind and accordingly the court dismissed the claim.
Following that decision, the courts were required to examine the principle again
when the owner of one of the ships moored at the docks at the time of the fire also
brought an action against the owners of the Wagon Mound, alleging negligence. In
the second decision relating to the same incident, the appeal court widened the
notion of foreseeability of damage by saying that damage was foreseeable if it was
damage that a reasonable person, placed in the defendant’s position, would consider
had a ‘real risk’ of occurring. As the officers of the Wagon Mound had acknowledged
that furnace oil was very difficult, but not impossible, to ignite, there was therefore
a ‘real risk’ that it would ignite. Accordingly, on this occasion the owners of the
Wagon Mound were found liable on the basis that the damage could be said to be
a foreseeable consequence of spilling the oil in the first instance, or failing to do
anything about it in the second instance.
In the second decision involving the Wagon Mound the court dismissed the argu-
ment that a remote risk was not reasonably foreseeable in the following terms:
If a real risk is one which would occur to the mind of a reasonable man in
the position of the defendant’s servant and which he would not brush aside
as far-fetched, and if the criterion is to be what that reasonable man would
have done in the circumstances, then surely he would not neglect such a risk
if action to eliminate it presented no difficulty, involved no disadvantage and
required no expense.82
The above principles were adopted by Australian courts but they have been criti-
cised as being too expansive in their interpretation. The issue was raised in the Ipp
Report in the following terms: ‘should the defendant be held liable for any of the
harmful consequences of the negligence, and if so, for which’. The report concluded
that there was a need to further consider the scope of a defendant’s liability for
damage arising from the defendant’s negligent act.
In an attempt to place some limitation on liability in negligence and therefore
liability for damages arising within the context of foreseeability of harm, the civil
liability legislation made provision for the principles that a court must consider in
determining causation and what had earlier been referred to as the principle of
remoteness but is now characterised as the ‘scope of liability’ for the defendant’s
negligent act. The relevant legislative provisions are those referred to above in dis-
cussing the principle of causation and remoteness. That is, section 5D of the Civil
Liability Act 2002 (NSW) and the equivalent provisions of the other states and
territories identified (with the exception of the Northern Territory).
106
In a number of respects, the principles do no more than restate the common-law

principles arising from the Wagon Mound decisions but with the limitation of prob-
ability of harm occurring.
Damages
Once the plaintiff has established, according to the civil standard, all of the prin-
ciples required to support the claim of negligence, it is then necessary for the court
to determine the amount of financial compensation (damages) to be awarded to
the plaintiff.
As a general rule, the common law made provision for ordinary compensatory
damages that were classified as specific damages and general damages.
Specific damages are those which can be specifically quantified in monetary
amounts. For example, compensation claimed for 2 months’ loss of salary can be
precisely calculated or medical expenses can be accurately stated.
Very often, one of the largest components of specific damages as part of ordinary
compensatory damages is the amount claimed for future economic loss as a result
of the loss of the plaintiff’s earning capacity arising from the defendant’s negligence.
As well, the economic cost of providing attendant care needs to the plaintiff on an
ongoing basis can be significant, particularly if the plaintiff is young, severely injured
with quadriplegia, or brain damaged, and will require care for the rest of his or her
life.
General damages are those which, as described, are general in nature and are
amounts awarded for ‘pain and suffering’ and ‘loss of enjoyment of life’. One of the
factors driving the legislative changes made to civil liability law arising from the Ipp
Report was the widely held belief that the amounts awarded by the courts as com-
pensation for such losses were excessive and driving up insurance costs.
As a consequence, there are now significant legislative constraints limiting the
amounts that may be awarded as compensation both for specific damages based on
economic loss and general damages based on non-economic loss. These legislative
constraints apply in all states and territories.
Using the Civil Liability Act 2002 (NSW) as an example, there is now a threshold
test to be met for entitlement to, and a cap on the amount that may be awarded
for, non-economic loss. In the first instance, no amount of compensation can be
awarded for non-economic loss ‘unless the severity of the non-economic loss is at
least 15% of a most extreme kind’. Even if a plaintiff is able to establish that thresh-
old requirement, there is a cap on the maximum that may be awarded even in the
most extreme cases.
There is also a cap placed on the damages a court may award for future economic
loss based on a plaintiff’s earning capacity. Where a plaintiff is awarded a calculated
lump sum for future economic loss, it is now to be discounted by 5 percent, or a
rate otherwise prescribed. Further, there is now a limit that may be recovered for
what is termed ‘gratuitous attendant care services’. Such services are the care services
that a family member, for example a mother or father, wife or husband, will need
to provide in order to ensure continuing care for the plaintiff, generally in the family
home.
107
At common law, as a component of financial loss, courts may award what is

known as aggravated, exemplary or punitive damages. This is an amount of money
awarded to the plaintiff in addition to any other compensatory amounts that may
be awarded. Such damages are rarely awarded and are generally awarded as a mark
of disapproval by the court of the defendant’s outrageous conduct towards the
plaintiff.
While there is provision within the ambit of compensatory damages for a
court to award a plaintiff aggravated, exemplary or punitive damages, such damages
have now been completely or partially abolished in relation to personal injury
claims.
There is now a prohibition or significant limitation on such damages in the new
civil liability legislation.
For example, in New South Wales a court cannot award aggravated, exemplary
or punitive damages in personal injury claims where the act or omission relied upon
was the defendant’s negligence. In Queensland a court can only award aggravated,
exemplary or punitive damages in a personal injury claim where the personal injury
arose from an unlawful, intentional act or an unlawful sexual assault or other sexual
misconduct.
Overall, the legislative changes made impacting on the limits that may be awarded
in compensatory damages, as well as the threshold tests that have to be met by a
plaintiff to qualify for damages, have made it very difficult for a plaintiff and have
significantly reduced the amounts able to be awarded by the courts. Such changes
will, we believe, have harsh consequences for many plaintiffs. It remains to be seen
if governments are ultimately persuaded to amend some of the more restrictive
provisions at some future time.
There are three important factors to bear in mind when considering the question
of damages generally.
1) In the absence of establishing negligence no damages can be awarded.

Obviously the exercise the plaintiff has to undertake in order to qualify for an
award of damages requires the plaintiff to find that somebody was negligent;
that is, that somebody other than the plaintiff was at fault in what was done
or failed to be done. There are situations where the plaintiff is unable to do
that and is therefore unable to bring a negligence action against anybody. For
example, a man driving a motor vehicle along a highway comes to a bend in
the road. In negotiating that bend he drives too fast, the car goes out of
control, runs off the highway and hits a tree. The driver suffers serious injuries,
including paraplegia. In this situation, the driver of the motor vehicle would
not be able to bring an action in negligence against anyone because he would
not be able to find fault with anyone — apart from himself perhaps, and he
cannot sue himself. At best he would become entitled to an invalid pension.
The outcome would be different, however, if instead of running off the road
out of control, the driver of the car sustained his injuries when the driver of
another vehicle failed to give way at an intersection. In that type of accident
the injured driver would be able to find somebody who was at fault; that is,
the driver of the other motor vehicle or, more importantly, his or her insurance
108
company, who would be liable to pay the amount of compensation awarded if

negligence is established.
2) If the plaintiff should succeed in proving negligence, he or she must also
ensure that the person or party made liable has adequate financial resources to
pay the amount awarded, either directly or by access to an insurance policy.
The task of the courts is not to provide the money awarded to the plaintiff,
but rather to assess and state the amount of damages the plaintiff is entitled to
once negligence has been established or admitted. The plaintiff must then
recover that amount from the defendant or the defendant’s insurer.
3) Common-law principles have long determined that, if a person dies as the
result of the negligent act of another, the person’s right to bring an action in
negligence ‘dies’ with them.
Clearly, such a principle had harsh consequences when a person died leaving
behind a family who had been financially dependent on that person’s income and
could have reasonably looked forward to that income for many years to come. To
overcome the harshness of that common-law principle, parliaments have intervened
and passed legislation which permits the relatives of a person killed in such circum-
stances to bring an action claiming compensation for the loss of income they could
foreseeably have been able to rely on. In New South Wales the legislation referred
to is known as the Compensation to Relatives Act 1897, but in the other states and
territories it has somewhat different titles.83
Generally speaking, the category of relatives who can bring such an action is
clearly defined in the Act. For example, the New South Wales Parliament passed
the Compensation to Relatives (De Facto Relationships) Amendment Act 1984 which
provided for the inclusion of a de facto spouse as a relative.
Provision for an apology within the context of potential civil liability

for negligence
Very often, persons who commence negligence litigation against healthcare profes-
sionals are reported as often being motivated by the failure or refusal of said profes-
sionals and health authorities to tell them the ‘how and why’ when things go wrong
and never receiving an expression of regret or apology for the negligent actions.
The main reason given by health authorities and medical practitioners for not
admitting errors and apologising is because such statements are seen as an admission
of liability with financial and insurance implications.
This phenomena has been acknowledged in the civil liability legislation enacted
following the Ipp Report, although there are differences as to how the issue is dealt
with.
For example, in New South Wales section 69 of the Civil Liability Act 2002 gives
protection from liability for an apology in the following terms:
1) An apology made by or on behalf of a person in connection with any
matter alleged to have been caused by the person:
a) does not constitute an express or implied admission of fault or liability
by the person in connection with that matter, and
109
b) is not relevant to the determination of fault or liability in connection

with that matter.
2) Evidence of an apology made by or on behalf of a person in connection
with any matter alleged to have been caused by the person is not
admissible in any civil proceedings as evidence of the fault or liability of
the person in connection with that matter.
Section 68 of the Act defines an apology as follows:

apology means an expression of sympathy or regret, or of a general sense of
benevolence or compassion, in connection with any matter whether or not
the apology admits or implies an admission of fault in connection with the
matter.
All other states and territories make provision for an ‘apology’ or an ‘expression
of regret’. The respective provisions are: Civil Law (Wrongs) Act 2002 (ACT) ss
12–14; Personal Injuries (Liabilities and Damages) Act 2003 (NT) ss 12 and 13; Civil
Liability Act 2003 (Qld) s 72; Civil Liability Act 1936 (SA) s 75; Civil Liability Act
2002 (Tas) s 7; Wrongs Act 1958 (Vic) ss 14I and 14J; Civil Liability Act 2002 (WA)
s 5AH.
There is considerable similarity between the respective legislative provisions. For
example, with the exception of South Australia, all state that any ‘apology’ or ‘expres-
sion of regret’ is not admissible in any civil proceedings as evidence of fault or liability.
The Northern Territory, Queensland and South Australia use the term ‘expression of
regret’ rather than ‘apology’ being defined to include ‘an expression of regret’, as used
in the other states and territories. The definition of ‘apology’ in the Australian Capital
Territory is similar to that in New South Wales — both of which would appear to
provide that an apology may include an admission of fault. In Victoria and Western
Australia an ‘apology’ is said to mean ‘an expression of sorrow, regret or sympathy by
a person’ that does not contain an acknowledgment of fault by that person. Victoria
goes somewhat further than the other states and territories by providing that in addi-
tion to an apology not constituting an admission of liability in civil proceedings as
evidence of fault, such an apology is also not an admission of ‘unprofessional conduct,
carelessness, incompetence or unsatisfactory performance’.
The most limited provisions are found in the Northern Territory and South
Australia. For example, section 75 of the Civil Liability Act 1936 (SA) provides:
In proceedings in which damages are claimed for a tort, no admission of
liability or fault is to be inferred from the fact that the defendant or a
person for whose tort the defendant is liable expressed regret for the
incident out of which the cause of action arose.
In the Northern Territory sections 12 and 13 of the Personal Injuries (Liabilities
and Damages) Act 2003 provide:
Section 12:
An expression of regret is an oral or written statement by a person:
110
a) that expresses regret for an incident that is alleged to have caused a

personal injury; and
b) that does not contain an acknowledgement of fault by that person.
Section 13:
An expression of regret about a personal injury made at any time before the
commencement of a proceeding in respect of that injury is not admissible as
evidence in that proceeding.
The extent to which such provisions are used by health authorities and/or health-
care professionals is unknown but can only be encouraged where appropriate.
Time limits or limitation periods
As in most civil litigation, the law imposes time limits or limitation periods for
bringing actions in negligence. Such limits will vary depending on the type of
damage or injury that is being alleged. For example, in relation to a claim for
damages for ‘dust diseases’ such as mesothelioma alleged to have been caused by
exposure to asbestos particles, no limitation period is set in New South Wales, the
Northern Territory or Victoria.84
As a consequence of the Ipp Report, changes have been made by the states and
territories to the relevant legislation setting limitation periods with respect to claims
for personal injury or death. As a general rule, there is now a period of 3 years in
which plaintiffs can commence such claims.85 What is critical is determining when
the limitation period begins to run. As a general rule it is when the plaintiff suffers
the damage complained of, although there are different approaches as to how that
is determined between the states and territories. For example, in the Australian
Capital Territory, Northern Territory, Queensland and South Australia the limita-
tion period starts to run from the time the injury occurred. In New South Wales
and Tasmania the time begins to run from the date when the personal injury is
‘discoverable’, and in Victoria and Western Australia it runs from the date on which
the action ‘accrues’. Section 50D of the Limitation Act 1969 (NSW) defines ‘dis-
coverable’ as follows:
1) For the purposes of this Division, a cause of action is discoverable by a
person on the first date that the person knows or ought to know of each
of the following facts:
a) the fact that the injury or death concerned has occurred,
b) the fact that the injury or death was caused by the fault of the defendant,
c) in the case of injury, the fact that the injury was sufficiently serious to
justify the bringing of an action on the cause of action.
2) A person ought to know of a fact at a particular time if the fact would
have been ascertained by the person had the person taken all reasonable
steps before that time to ascertain the fact.
3) In determining what a person knows or ought to have known, a court may
have regard to the conduct and statements, oral or in writing, of the person.
4) To remove doubt, a compensation to relatives action is not discoverable
before the date of death of the deceased.
111
In Victoria reference to the date when the action ‘accrues’ is provided for in
section 5(1AA) and (1A) of the Limitation of Actions Act 1958 which states that a
cause of action accrues on the date on which the person first knows:
a) that he suffered those personal injuries, and
b) that those personal injuries were caused by the act or omission of some
person.
As a general rule, the prescribed limitation period for children does not begin to
run until the child reaches the age of 18 years. Accordingly, depending on the limi-
tation period applying in the particular state or territory, the young person would
have until the age of 21 years where the limitation period is 3 years and until the
age of 24 where the limitation period is 6 years.
Given the variations that can arise in relation to limitation periods for negligence
actions involving personal injury or death, it is important that advice be sought as
soon as possible where a claim is contemplated in order to avoid problems with
limitation periods.
The legislation of all of the states and territories provides the courts with a discre-
tion to extend limitation periods in certain circumstances. Not surprisingly, it
is not a discretion that is lightly exercised. There would have to be cogent and
compelling reasons to support an application to file a claim beyond the limitation
period set.
Defences to an action in negligence

When a plaintiff brings an action against a defendant alleging negligence, it is
necessary for the plaintiff to establish his or her allegation on the balance of prob-
abilities. Equally it is possible for the defendant to refute the allegation of negligence
made by the plaintiff by raising certain defences.
In raising a defence it is necessary for the defendant to establish that defence on
the balance of probabilities by calling the appropriate evidence. The general defences
available to a defendant are briefly summarised below.
A general denial and rebuttal of the allegation
This is the most common form of defence raised and arises where the defendant
can establish that:
• no duty of care was owed to the plaintiff, or
• whatever the defendant did was reasonable in all the circumstances in that it
was shown to be ‘widely accepted’ by ‘peer opinion’ to be ‘competent
professional practice’, or
• the plaintiff suffered no damage, or
• there was no causal relationship between the breach of the duty of care alleged
and the damage to the plaintiff, or
• the damage being complained of was too remote from the negligent act.
If the defendant can establish one or more of the above principles he or she will
be able to successfully resist any claim for compensation made by the plaintiff.
112
Contributory negligence
This is often referred to as a ‘partial defence’ to an action in negligence. As far as
common-law principles are concerned, if the defendant succeeds in establishing
contributory negligence as a defence, this operates as a total defence. This situation
has now been changed by statute in all states and territories so that the essence of
contributory negligence as a defence is to apportion a determined percentage of
blame to the plaintiff for the damage caused and penalise the plaintiff by reducing
the damages accordingly.86 The determination of apportionment of blame, if any,
is done by the judge but the defendant must establish it on the balance of probabili-
ties. At first glance it is often presumed that contributory negligence is where a
person assists (or contributes to) the negligent act of the defendant. What the
expression means is that the defendant alleges that the actions of the plaintiff in
the incident complained about also amount to negligence and have contributed to
the damage which resulted.
A good example of a case in which contributory negligence is often raised as a
partial defence is that of personal injury involving the failure of a passenger in
a motor vehicle accident to wear a seat belt. For example, a front seat passenger in
a motor vehicle fails to secure the seat belt and, as a result of the driver’s negligence,
an accident occurs. On impact the passenger is thrown forward through the wind-
screen of the car onto the bonnet, suffering severe facial lacerations and head inju-
ries. The passenger sues the driver of the motor vehicle for negligence and, as part
of the damages complained of, seeks compensation for all of the consequences of
the facial and head injuries suffered.
In his defence, the driver alleges that if the passenger had worn a seat belt, the
facial and head injuries he or she is now complaining about would not have been
sustained and that this is a fact readily known or which ought to have been known
by the passenger. Therefore, the failure or negligence on the part of the passenger
to wear a seat belt has contributed to the damage he or she is now complaining
about. In raising such a defence it would be necessary to call evidence in support
of it. If the driver, as the defendant, can successfully establish the partial defence of
contributory negligence, the court is entitled to reduce, by a percentage, the damages
awarded. This percentage, as determined by the court, represents the plaintiff’s share
or portion of the fault in causing the damage being complained of. Damages are
reduced in percentage terms so that the court may determine that the plaintiff was
10 percent (or 50 percent or 85 percent, and so on) to blame for the damage and
reduce the amount awarded accordingly.
The partial defence of contributory negligence may have some relevance to
hospitals and health centres if it can be established that, in a negligence action
brought by a patient, what the patient did or failed to do was also negligent and
accordingly contributed to the damage the patient is complaining about. For
example, where a plaintiff failed to keep his or her appointments with the doctor,
or where a plaintiff failed to properly describe the nature of his or her symptoms
to the doctor or nurse concerned. As always, it would depend on the facts and
circumstances of the matter and, if the defence is raised, the defendant must estab-
lish it according to the civil standard of proof, that being on the balance of
probabilities.
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Voluntary assumption of risk

This defence is commonly known as the defence of volenti non fit injuria (‘no injury
is done to one who voluntarily consents’). Its basis is that no action in negligence
can arise if the plaintiff knowingly and willingly consents to run the risk of injury.
A person who participates in a dangerous sport cannot complain if he or she is
injured, as the defence of volenti would claim that, in agreeing to participate in such
dangerous activities, the person had voluntarily assumed the risk of injury.
For a defendant to raise volenti as a defence, he or she must establish, on the
balance of probabilities, that the plaintiff knew of and understood the risk of injury
arising from the activity undertaken and, knowing and understanding that, freely
and voluntarily consented to run the risk of injury by participating in that
activity.
Not surprisingly, this defence arises most often in relation to sporting activities.
It should be noted, however, that such a defence will not succeed if a person in the
course of a game goes beyond the normal ‘rough and tumble’ of a particular sport-
ing activity and recklessly or negligently injures a fellow player. In such a situation
the defence of volenti will fail. Damages have been awarded to people injured in
sporting activities where they have established that they were exposed to an unrea-
sonable risk of harm or where a fellow player has acted recklessly and beyond what
would be considered reasonable in all the circumstances and which has resulted in
injury.
It should be noted that as a result of the changes to the civil liability law, a
defendant is not liable in negligence for harm suffered by a plaintiff where the injury
was as a result of an ‘obvious risk’ of a dangerous recreational activity (such as any
sport) engaged in by the plaintiff. Accordingly, the plaintiff would bear the onus of
proving that he or she was not aware of the ‘obvious risk’ raised as a defence by the
defendant.
As much as it may appear to be an attractive defence for hospitals and healthcare
personnel, the courts have long ago determined that any attempt to raise such a
defence by such parties is ethically and legally indefensible as being contrary to
public policy.
Vicarious liability
In determining liability in many situations it is necessary to consider whether the
financial responsibility for an individual’s personal liability can be transferred to
another person. In determining this issue the courts will have regard to the prin-
ciples encompassed within the doctrine of vicarious liability.
The doctrine of vicarious liability is a common-law doctrine of long standing. It
provides that, where an employee has been negligent in the course and scope of
employment and a person suffers damage as a result, the employer will be
made liable. That does not mean that the personal liability of the individual is
transferred to the employer but that the responsibility for the negligent act is
directed at the employer. In simple terms, that means that the employer has to pay
the plaintiff the sum of money awarded by the court as a result of the employee’s
negligent act.
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Historically the doctrine has its origins in the old master and servant relationship,
which made the master liable for all the wrongs of his servants. Over the years,
with social, industrial and technological change, the master/servant terminology
has been replaced by employer/employee relationship. Despite the change of
terminology, the doctrine of vicarious liability has been retained insofar as imputing
liability within the employer/employee relationship. It can be very difficult
for employers to avoid liability under this doctrine, primarily for practical economic
reasons. If the individual employee were to remain financially liable to compensate
the innocent plaintiff who has been badly damaged, many such plaintiffs would
go without, for the simple reason that it is not worth suing most employees
because they do not have any worthwhile financial resources. Obviously the
employer is in a better financial position, better able to plan and insure for
such losses and better able to distribute such losses through their financial
system.
In pursuing an attitude of almost strict liability against the employer in this area,
the law has also provided the employer with the power to recover such money paid
out, either wholly or in part, from the employee concerned. The right to seek total
recovery of monies paid is known as seeking an indemnity from the employee
concerned; the right to seek partial recovery is known as seeking a contribution.
The right of the employer to pursue such remedies and the practical considerations
attached to such an action will be dealt with following an examination of the major
principles of the doctrine itself.
When considering whether the employer is vicariously liable for the negligent
acts of another, the following principles have to be determined:
• that the person was an employee;
• that the negligent act arose in the course and scope of employment.
Who is an employee for the purposes of the doctrine of

vicarious liability?
For the purposes of the doctrine of vicarious liability, an employee has to be distin-
guished from what is traditionally referred to as an independent contractor. The
closest analogy to an independent contractor is the self-employed person, although
as far as the law is concerned this may not necessarily be the case. In the first instance
the way to distinguish between an employee and an independent contractor is to
apply what the law refers to as the control test. Generally speaking, a person is an
employee if the employer exercises authority over that person in the performance
of the person’s work and is able to give the person instructions in relation to such
work. In most situations other indicators of control can be the answers to the fol-
lowing questions:
• Is the person paid a weekly or regular wage that is tax deducted?
• Is the person entitled to the benefits of an industrial award; for example,
annual leave, sick leave?
• Does the employer provide the necessary plant and equipment to enable a
person to carry out the duties that person is engaged to perform?
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If the answers to the above questions are in the affirmative there is probably no
doubt that the person concerned is an employee. The great majority of people
working in differing types of employment are clearly employees, and nurses and
midwives are no exception.
The question as to whether a person is an employee or an independent contractor
may not always be readily apparent, even when using the control test, as particular
circumstances may exist in some cases which make it difficult to determine.
For example, in a dispute between a trapeze artist and the management of Wirth’s
Circus, the question arose whether the trapeze artist was an employee or an inde-
pendent contractor. The traditional tests of control at first glance seemed to indicate
that the artist was an independent contractor, in that the professional skill, judg-
ment and expertise required of a trapeze artist could not be under the control of
somebody in authority. However, the High Court of Australia determined that the
trapeze artist was an employee and in making that finding the court stated:
The duties to be performed may depend so much on professional skill or
knowledge … or the necessity of the employee acting on his own
responsibility may be so evident, that little room for direction or command
in detail may exist. But that is not the point. What matters is lawful
authority to command so far as there is scope for it.87 [emphasis added]
A more recent decision where the control test was considered in determining
whether a person was an employee or independent contractor is the High Court
decision in Hollis v Vabu Pty Ltd.88 In that matter, the plaintiff (Mr Hollis) was
knocked over and injured by a bicycle courier. The courier was identified only by
his uniform, on which appeared the words ‘Crisis Couriers’. That name was the
trading name of the defendant. Relying on the doctrine of vicarious liability, Mr
Hollis sued the defendant as the courier’s employer. The defendant argued the
courier was an independent contractor and therefore it was not liable. On appeal,
the High Court disagreed, determining they were employees, saying that:
… considerations respecting economic independence and freedom of
contract are not, with respect, determinative of the legal character of the
relationship between the bicycle courier and Vabu as disclosed by the
evidence.89
The High Court identified the following matters as being relevant to consider-
ations of control:
a) The couriers were not providing skilled labour or labour which required
special qualifications. A bicycle courier was unable to make an independent
career as a free-lancer or to generate any ‘goodwill’ as a bicycle courier.
b) The evidence showed that the couriers had little control over the manner of
performing their work. They were required to be at work by 9.00 am and
were assigned in a work roster according to the order in which they signed
on. Couriers were not able to refuse work.
c) The facts showed that couriers were presented to the public and to those
using the courier service as emanations of Vabu. They were to wear
uniforms bearing Vabu’s trading logo of Crisis Couriers.
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d) There were important considerations of deterrence. Reference was made to

findings of fact in respect of the knowledge of Vabu as to the dangers to
pedestrians presented by its bicycle couriers and the failure to adopt effective
means for the personal identification of those couriers by the public. One of
the major policy considerations in other court decisions to support a finding
of vicarious liability was deterrence of future harm by fixing the employer
with responsibility for the employee’s wrongful act, even where the employer
is not negligent, as it may have a deterrent effect.
e) Vabu superintended the couriers’ finances. That is, Vabu produced pay
summaries and couriers were required to dispute errors by 6.00 pm Friday of
the same week. There was no scope for the couriers to bargain for the rate of
their remuneration. Vabu was authorised to hold for 6 weeks the last week’s
pay of a courier against any overcharges, unpaid cash jobs or outstanding
insurance claims. Moreover, in relation to leave periods at Christmas and
Easter, Vabu stipulated that ‘[n]o annual leave will be considered for the
period November to Christmas Eve, nor for the week prior to Easter. Leave
requests will be considered in accordance with other applications and should
be submitted to the manager in writing at least 14 days prior’. This suggested
that their engagement by Vabu left the couriers with limited scope for the
pursuit of any real business enterprise on their own account.
f ) The situation in respect of tools and equipment was that apart from
providing bicycles and being responsible for the cost of repairs, couriers
were required to bear the cost of replacing or repairing any equipment of
Vabu that was lost or damaged, including radios and uniforms.
g) There was considerable scope for the actual exercise of control. Vabu’s whole
business consisted of the delivery of documents and parcels by means of
couriers. Vabu retained control of the allocation and direction of the various
deliveries. The couriers had little latitude.90
The application of the control test in relation to claims of negligence by the

medical staff of hospitals ran into considerable legal difficulties for many years. The
courts took the view that, although hospitals were required to exercise due care in
the selection of staff, they could not be made liable for the negligence of medical
and nursing staff in carrying out their professional duties, because they were unable
to control them in the exercise of their professional judgment. Accordingly, hospital
management could not be made vicariously liable for the negligent acts of such
staff. Although such a view prevailed early this century, it has gradually been eroded
as the courts have sought to overcome the limitations of the control test by other
arguments. The alternative test ultimately devised by the courts is known as the
organisation test. The question to be asked is: Is the person part of the employer’s
organisation? Such a test has also been applied in the context of the following ques-
tion: Is the person’s work subject to coordinational control as to the where and when
rather than the how?91
The attitude taken by the courts now is that hospitals are liable for the negligence
of all staff, including nurses, midwives, resident medical officers, part-time
117
anaesthetists and consultants on the basis that they are part of the hospital organisa-
tion. The liability of hospitals for such staff was clearly spelled out in a decision of
the English Court of Appeal in 1954 in a case known as Roe v Minister for Health.92
Although Mr Roe was unsuccessful in his action against the hospital and the anaes-
thetist for other reasons, the appeal court did spell out clearly its view on the liability
of hospitals for staff such as anaesthetists. In relation to that issue, one of the appeal
judges stated:
In the first place I think the hospital authorities are responsible for the
whole of their staff, not only for the nurses and doctors but also for the
anaesthetists and the surgeons. It does not matter whether they are
permanent or temporary, resident or visiting, whole-time or part-time. The
hospital authorities are responsible for all of them. The reason is because, even
if they are not servants, they are the agents of the hospital to give the
treatment. The only exception is the case of consultants or anaesthetists
selected and employed by the patient himself.93 [emphasis added]
The views expressed in that passage would have general application in Australia.
In addition, the organisation test has been applied in the decision of the New South
Wales Court of Appeal in 1980 in Albrighton v Royal Prince Alfred Hospital.94 For
the purposes of comment on the issue of vicarious liability the relevant facts are set
out below.
EXAMPLE: ALBRIGHTON V ROYAL PRINCE ALFRED HOSPITAL

In 1971, a 15-year-old girl was admitted to Royal Prince Alfred Hospital for cor-
rective surgery to straighten and lengthen her spine, involving a procedure known
as halopelvic traction. The girl had suffered, from birth, a deformity of the spine
called kyphoscoliosis, spina bifida, and she had a large hairy naevus on her lower
back over her spine, which was some indication of the possibility of ‘tethering’ —
adherence of the spinal cord to the adjacent structures with consequent risk of
rupture and the possibility of paraplegia if traction were applied.
During her admission, the young girl was attended by Dr Tyer and Professor
Gye, a neurosurgeon, who was called for a second opinion by Dr Tyer. The
halopelvic frame was fitted and traction applied on five succeeding days. As a result
of the treatment, the spinal cord was severed and the young girl became a
paraplegic.
The young girl eventually brought an action against the hospital and the two
doctors for negligence. The action against the hospital was based squarely on the
hospital’s vicarious liability for the actions of the two doctors. When the matter
came before the Supreme Court in the first instance the judge upheld the view
expressed by the hospital’s barrister, disclaiming vicarious liability on the part of the
hospital. In that decision it was held that:
… a hospital in New South Wales (in possible contradistinction, in certain
circumstances, from a hospital in England) will be vicariously liable for the
negligence of a doctor in relation to his patient in the hospital only if, in
addition to having the power to direct the doctor as to what he is to do, the
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hospital also has the power, whether or not it exercises it, to direct him as to
the manner in which he is to do his work.95
That proposition was quite firmly overturned when the case went on appeal to
the New South Wales Court of Appeal. In dealing with that point the appeal judges
held as follows:
The concept that a hospital fulfils its duty of care to persons treated in it by
selecting and appointing competent medical staff, and the concept that a
hospital is not responsible for the tortious conduct of its medical staff in the
course of their duties in the hospital, unless it can be shown that the
hospital has the power (whether or not it exercises it) of directing them as
to the manner in which they should carry out their work (the control test)
have both long since been eroded.96 [emphasis added]
The control test is not now acceptable in its full vigour. Today, the uncontrol-
lability of a person who is part of an organisation, as to the manner in which that
person performs his or her task, does not preclude recovery from the organisation,
and does not preclude the finding of a relationship of master and servant, such as
to make the former vicariously liable for the negligence of the latter.
The appeal judges went on to say that, in order to determine the relationship
between the hospital and the medical practitioners, in this instance, it was necessary
to look at the evidence in order to determine whether the hospital was vicariously
liable for any negligence proved against the medical practitioners concerned. On
this particular occasion that evidence comprised the account of the activities of the
doctors within the hospital; their use of and compliance with hospital forms and
routines, and the operation of the hospital by-laws.
When a patient is a private patient and the doctor is employed directly by the
patient, the hospital may not be liable for the particular actions of the doctor. It
would depend very much on the facts and circumstances of each case. However, if
the damage caused to the patient came about as the result of faulty hospital equip-
ment being used by the doctor, the hospital would clearly be liable.
EXAMPLE: ELLIS V WALLSEND DISTRICT HOSPITAL

The decision of the New South Wales Court of Appeal in Albrighton v Royal Prince
Alfred Hospital in relation to the application of the principle of vicarious liability
became the subject of further judicial comment in the New South Wales Court of
Appeal decision in Ellis v Wallsend District Hospital.97 The relevant facts of this
matter are that Mrs Ellis was a 43-year-old woman when she had a cervical posterior
rhizotomy of nerve roots at C2-6. Post-operatively she became a quadriplegic. The
Court of Appeal determined that Dr Chambers had been in breach of his duty to
Mrs Ellis by failing to warn her of the possibility of paralysis arising from the pro-
posed surgery; further, that Mrs Ellis had relied on his advice in agreeing to undergo
the surgery and that she would not have agreed to undergo the surgery if she had
been properly warned. Thus, Mrs Ellis’ reliance on Dr Chambers’ advice had caused
her to suffer the paralysis arising from the surgery which she would not have had
if she had been properly warned by Dr Chambers of the risks involved.
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The decision of the Court of Appeal in establishing negligence on the part of Dr

Chambers was a somewhat hollow victory for Mrs Ellis. As the facts established, by
the time the matter came to trial Dr Chambers had died. Mrs Ellis had been unable
to recover from Dr Chambers’ estate all of the compensation she believed was
appropriate having regard to her damage because of the financial limitations of the
professional indemnity policy which Dr Chambers had taken out. Accordingly, for
Mrs Ellis to obtain additional compensation she had to establish that the hospital
was vicariously liable for the negligence of Dr Chambers or that the hospital was
personally and directly liable. She failed on both counts.
The decision of the Court of Appeal to dismiss Mrs Ellis’ appeal was made by
the majority decision of two out of the three judges hearing. In dismissing Mrs
Ellis’ appeal the court was at pains to distinguish their decision from that in Albrigh-
ton above. In doing so the major fact which the court relied upon was expressed as
follows by Samuels JA:
So far as the treatment of the appellant (Mrs Ellis) is relevant, there is a
critical distinction between the facts in Albrighton and those in the present
case. The patient in Albrighton went directly to the hospital for treatment
and advice and first saw the second defendant in the outpatients
department; and he, in due course, consulted the third defendant about her
case.98
The ‘critical distinction’ in relation to Mrs Ellis was that she had always sought
treatment directly from Dr Chambers in his private consulting rooms.
There was considerable evidence produced in the appeal seeking to establish
an employer/employee relationship as between Wallsend District Hospital and
Dr Chambers. Reliance was placed on the Model By-Laws and Rules of Public
Hospitals which governed the relationship and largely set out the agreement as
between Dr Chambers and the hospital. On that issue the majority decision of the
court determined that Dr Chambers’ relationship with the hospital in relation to
his treatment of Mrs Ellis was not one of employer and employee but rather that
he was conducting his independent practice as a neurosurgeon. In coming to their
decision on the existence or otherwise of an employer/employee relationship between
the hospital and Dr Chambers, the majority decision of the court had this to say,
in part:
I would therefore approach the matter by seeking an answer to the question:
‘In treating the appellant was Dr Chambers acting as the employee of the
hospital (that is to say, on the hospital’s behalf ) or on his own behalf?’ …
In seeking the answer I must examine all relevant indicia; that is to say all
facts capable of elucidating the question, and thus consider the whole of the
relationship between the parties.
I must deal with the evidence again, but I can do so this time in a rather
more sophisticated way. Dr Chambers at all material times carried on his
own business, that is to say, his own specialist medical practice. The
performance of surgery was a vital incident of that practice, and required
the use of facilities which could be obtained only in a hospital which
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provided operating theatres with their standard fixtures and fittings

(I interpolate that Dr Chambers provided other items of the surgeon’s kit),
together with wards, recovery rooms and trained nursing staff. The list is
not exclusive. Without these resources Dr Chambers could not have carried
on his practice as a surgeon.
For its part, the hospital needed senior physicians and surgeons in order to
fulfil the objects prescribed by by-law 5, that is, ‘to establish and maintain
hospital facilities and afford relief to sick persons’ in accordance with the
provisions of the Public Hospitals Act 1929, section 3 of which defined
‘relief ’ to include treatment of disease or injury and the provision of
medical and surgical attention … Dr Chambers undertook to treat free of
charge those patients who had applied directly to the hospital for relief, in
return for operating privileges, nursing care and accommodation in respect
of those of his own patients whom he would book into the hospital. By ‘his
own patients’ I mean those who had consulted Dr Chambers directly, or
had been referred to him by other doctors, and who had agreed to pay him
a fee for his services. They would pay the hospital for nursing and other care
and for accommodation as private or intermediate patients.
Dr Chambers received no remuneration from the hospital. The hospital
through its board and the chief executive officer … retained that slight
degree of control over the activities of the honorary medical staff …
necessary, as I have said, to maintain administrative efficiency and
integrity …
Considering the totality of the relationship between the parties I conclude
that it points convincingly to the conclusion that in treating the appellant
Dr Chambers was engaged in his own business and not the hospital’s. He
was conducting his independent practice as a neurosurgeon and his
relationship with the hospital was not one of employer and employee.99
The comments of the judge who disagreed with the majority view in relation to
this point are in such contrast as to require careful consideration. In his minority
decision on this issue Kirby P stated, in part, as follows:
The relationship between Dr Chambers and the hospital was defined by the
Model By-laws and Rules for Public Hospitals which were admitted into
evidence without objection …
In my opinion, these by-laws, for mutual benefit, tied Dr Chambers
inextricably into the organisation of the hospital. True, he could not be
directed on how to ‘hold the knife’. But neither could the other professional
staff be so directed. He was integrated into the discipline and direction of
the hospital. What he did in his rooms was his affair. But when he came
into the hospital, he was part of the hospital. When working on its
premises, he was part of its integrated medical team. Nothing could
demonstrate this more clearly than the consent form which patients
(including Mrs Ellis) were required to sign upon their admission to the
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hospital. It is set out in full in the judgment of Samuels JA. It includes the
statement: ‘I understand that an assurance has not been given that the
operation will be performed by a particular surgeon’.
This showed that, although a patient would have every expectation that
her own doctor would perform the operation, once she came into the
hospital her relationship with Dr Chambers changed. She was thereafter
(as was he) under the discipline, and subject to the requirements, of the
hospital.100
In addition to the issue of vicarious liability, the Court of Appeal was also required
to consider whether the hospital was directly liable for the negligence of Dr Cham-
bers. Once again, on this issue the judgment presented two contrasting views. The
majority decision maintained the consistent approach it had adopted in rejecting
the application of the principle of vicarious liability and rejected the argument that
the hospital was directly liable for Dr Chambers’ negligence. In considering the
facts of the matter before them, and distinguishing it clearly from Albrighton, the
majority decision reads, in part, as follows:
… a hospital is bound to ensure that reasonable care is used in providing
the treatment which it undertakes to carry out; but that duty does not
extend to treatment which is performed by a doctor pursuant to a direct
engagement with the patient, and not on behalf of the hospital.
In my opinion therefore while proof of the relationship of hospital and
‘patient’ will generate a special duty of some kind, closer scrutiny of the
facts is necessary in order to establish its scope …
In the present case, however, it is quite clear that the appellant did not
knock at the hospital’s door … It was not the hospital’s door but the door
of the late Dr Chambers’ consulting rooms upon which she knocked, and it
was that door which was opened to her and which admitted her to the
treatment and advice upon which she thereafter principally relied. I do not
think it can be doubted but that it was Dr Chambers and not the hospital
to whom the appellant looked for medical care. The hospital, for reasons
which I have already discussed and will not repeat, was merely the place in
which surgical procedures which he had recommended and which the
appellant had agreed to undergo were performed by Dr Chambers.101
The majority decision already identified a difference between the facts and cir-
cumstances of Albrighton and Ellis — predominantly on the issue that in Albrighton
the patient had attended the hospital outpatient clinic for treatment in the first
instance whereas Mrs Ellis had always sought treatment directly from Dr Chambers
in his private consulting rooms. The minority decision of the Court of Appeal on
the issue of the hospital’s direct liability again contrasted strongly with the majority
decision. In his decision on this issue, Kirby P stated, in part, as follows:
It is wrong, in my opinion, to present the respondent hospital as the mere
venue for the performance by Dr Chambers of his private surgical
procedures. Such a conclusion flies in the face of the consent form, the
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by-laws and the mutually beneficial arrangement under which Dr Chambers

operated at the hospital.
Accordingly, if there was negligence on the part of Dr Chambers, it was
negligence for which the hospital was liable. It was so liable either because it
was vicariously liable for his negligence as a member of its honorary medical
staff. Or it was liable directly to the patient which it could not fulfil merely
by delegating its operation to a member of the honorary medical staff. As
Reynolds JA said in Albrighton, the hospital was not a ‘mere custodial
institution designed to provide a place where medical personnel could meet
and treat persons lodged there, as it might have been regarded in years long
since gone by’ (at 562). It was, to the contrary, an integrated institution.
And Dr Chambers was part of it.102
Given the contrasting opinions in Ellis there is no doubt that future decisions on
the issue of vicarious and direct liability of hospitals for staff or healthcare practi-
tioners who use their premises and facilities, howsoever described, will very much
be determined on the particular facts and circumstances of the situation. The major-
ity decision in Ellis does have implications for visiting medical staff vis-a-vis their
relationship with a particular hospital. Given the facts of the case, no particular
implications arise in relation to those nurses and midwives who are employees at
law and who do not generally change their employee status to that of independent
contractor as can occur in relation to medical practitioners. The implications may
well be different, however, for the nurse or midwife who may be found to be an
independent contractor. The most obvious example where that might arise would
be in relation to independent or homebirth midwives.
The predicament for Mrs Ellis in the majority decision was that she was unable
to be fully compensated because Dr Chambers was not fully indemnified by insur-
ance. Such an outcome was clearly most unfortunate, particularly when it is remem-
bered that as Mrs Ellis lost her appeal she was required to pay the hospital’s approved
legal costs in defending the action. On this issue Kirby P said:
Where, as here, the honorary surgeon was not fully indemnified, the
question is where the law should assign the loss. It is preferable, in my view,
that it should be fixed upon the hospital which has far better facilities
(and can be expected) to insure itself fully. That insurance can readily cover
all staff — honorary and otherwise. Only in this way can the patient be
protected from the predicament which now faces Mrs Ellis because of the
underinsurance of the late Dr Chambers.103
The situation such as that referred to above by Kirby P is clearly a factor which
must influence the application and interpretation of the principle of vicarious
liability.
What constitutes the course and scope of employment?

The principle of vicarious liability clearly envisages that the employer’s liability is
confined to those negligent acts that arise within the course and scope of an
employee’s work. It is not uncommon to find that the notions of what constitutes
123
the ‘course of employment’ and the ‘scope of employment’ are considered separately.
It is not necessary to make such a rigid distinction for the purposes of this text and,
accordingly, they are considered together. The attitude of the courts as to what
constitutes the ‘course and scope of employment’ is not subject to precise definition
and has generally tended to be given the widest possible application, probably
largely as a result of the courts’ eagerness to ensure that plaintiffs will not go uncom-
pensated because of the individual employee’s inability to pay.
Generally speaking the ‘course and scope of employment’ will embrace all the
authorised acts of an employee, even if such authorised acts are performed in an
incorrect and unauthorised way. For example, if a nurse or midwife administered
medications contrary to authorised hospital procedure and protocol and, in doing
so, negligently gave the wrong drug, and the patient suffered damage, the hospital
would still be vicariously liable. The giving of medications is well recognised as
being part of the work of a nurse or midwife and the fact that she or he gives them
out in an unauthorised way contrary to the organisation’s policy does not allow the
hospital to escape its liability.
The result of that example might well be different if the nurse prescribed the
medication. As a general rule, nurses and midwives are not authorised to prescribe
medications (nurse practitioner provisions aside). Should a nurse or midwife rou-
tinely take it upon herself or himself to prescribe medication, and a patient suffered
damage as a result, then it could be argued that she or he had gone outside the
course and scope of employment and the hospital would not be vicariously liable
for the damage caused and, more significantly, the payment of any compensation
awarded.
Alternatively, an emergency situation might well be different. For example, in
areas such as intensive care, registered nurses are sometimes authorised to adminis-
ter, in the absence of a medical practitioner, a medication regime which may be
given in certain life-threatening situations. The authority for such emergency
treatment should be found in the appropriate hospital protocol, drawn up and
approved by the medical officers concerned. Where initiation of the administration
of medication by registered nurses in emergency situations is sanctioned in appro-
priate circumstances, such actions will clearly come within the course and scope of
employment. The same situation may arise in the labour ward where a midwife is
authorised by a clinical protocol to administer certain medications in an obstetric
emergency. As always, it is necessary to look at each case in the light of its own
particular facts and circumstances. To take it outside the course and scope of
employment, an employee’s actions must consist of more than doing an act in a
way or at a time that is prohibited by the employer. The employee’s actions must
also be so totally unrelated and removed from his or her normal course of employ-
ment that the employee is put, on the occasion in question, ‘in the position of
stranger’ vis-a-vis his or her employer.104
When an employee goes outside the course and scope of employment it is often
said that the employee is out on a ‘frolic of his/her own’. As far as nursing staff are
concerned the temptation to embark on such a frolic more often than not involves
the use of motor vehicles and, in so doing, community nurses are the most likely
to be affected.
124
Problems arising from the use of motor vehicles provided by

the employer
When an employer provides an employee with a motor vehicle for the purposes of
carrying out his or her work, the general intention is that the vehicle will be used
by the employee only in the course of employment. A motor vehicle is more often
the cause of an employee going outside the course and scope of employment and
embarking on a ‘frolic of his/her own’ because its use is relatively easy and tempt-
ingly convenient. The question to be considered is to what extent, if at all, can an
employee driving the employer’s motor vehicle diverge from his or her normal work
journey and still remain within the course and scope of employment. The attitude
taken by the courts in such matters is to consider the extent and purpose of such
divergence, bearing in mind that practical considerations do not often permit the
most direct route to be used. The following are examples of different views expressed
by the courts.
1) A long-distance truck driver who turned off the highway to go to a hotel to
get a drink negligently collided with a motor cycle. The court determined that
the driver was acting in the course of employment, because it was reasonable
to diverge from the highway for the purpose of obtaining refreshment.
Accordingly the employer was vicariously liable. The case is reported as
Chaplin v Dunstan (1938).105
2) A courier was sent to deliver wine and collect certain empty bottles. On the
return journey he agreed to give a friend a lift in a different direction from the
usual return journey. An accident occurred, caused by the courier’s negligence.
The court determined that the courier had diverged from the course of his
employment and had undertaken a completely different journey. Accordingly
the employer was held not to be vicariously liable. The case is reported as
Storey v Ashton (1986).106
These examples illustrate that an employee is not required to take the most direct
route, and that a reasonable divergence from that route will not necessarily take the
employee outside the course and scope of employment. Once again, it would be
necessary to consider the facts and circumstances of each case, having regard to the
views expressed by the courts.
A further problem arises when an employee gives a lift to a person while engaged
in the course of employment and does not diverge from it. The following is a hypo-
thetical example. A community nurse is driving her employer’s motor vehicle back
to the community health centre after completing her visits for the day. It is mid-
afternoon in summer and extremely hot. On the way back she notices an elderly
lady walking slowly along the footpath. Concerned for her because of the heat, the
nurse pulls over and asks the lady where she is going and if she can help. As it
happens, the elderly lady is on her way to the outpatients’ department at the local
hospital. Coincidentally, the community health centre is situated in the grounds of
the hospital and the nurse offers to drop her off. The elderly lady agrees and gets
into the car. On the journey to the hospital the nurse negligently collides with
another vehicle and the elderly lady is injured. The nurse’s employer has consistently
125
made it clear that staff are not to give lifts to people, other than clients on authorised
journeys.
In the hypothetical example given, the nurse was clearly doing what she was
not authorised to do, and yet her actions could not be said to be so totally unre-
lated or removed from her normal course of employment as to place her in the
position of a stranger vis-a-vis her employment. In addition, at no time did the
community nurse diverge from her route, which she was following in the course
and scope of her employment. Would the employer be vicariously liable in such
a situation?
Although no situations precisely resembling the hypothetical example outlined
above have been dealt with by the courts on a reported basis, the courts have con-
sidered the position where an employee engaged in the course of employment gives
a lift to a stranger contrary to the employer’s instructions. In such situations, the
courts have generally come to the view that the employer was not vicariously liable,
on grounds that the employee was on a frolic of his or her own as regards the
passenger.
However, the practical outcome in such situations can sometimes render the
determination of the employer’s vicarious liability or otherwise an academic exercise.
In the hypothetical example outlined above, the elderly lady passenger who suffered
personal injury would be able to make a claim against the registered owner’s com-
pulsory third party insurance cover — notwithstanding that the employer is prob-
ably not vicariously liable.
Part and parcel of motor vehicle ownership in every state and territory is the legal
necessity that the vehicle be registered. A proportion of the registration fee paid by
motor vehicle owners each year is allocated to the relevant state, territory or Com-
monwealth government insurance authority. This is done to provide funds for the
purposes of compensating people injured in motor vehicle accidents caused as a
result of a motorist’s negligent driving. The large number of people who are killed
or seriously injured on our roads each year necessitated that some steps be taken to
ensure that they or their relatives had recourse to some form of compensation. As
a recognition of that necessity state, territory and Commonwealth parliaments
introduced compulsory third party motor vehicle insurance as part of the motor
vehicle registration fee. This compulsory third party insurance covers only negli-
gence-based claims for personal injury. (Claims for property damage to motor
vehicles must be covered by additional comprehensive insurance.)
The implications of the doctrine of vicarious liability are not always academic.
For example, a community nurse was given permission to drive the employer’s car
to and from work but was advised otherwise not to use it for personal use. During
days off the nurse used the car to go and visit friends some distance away. On the
return journey an accident occurred as a result of the nurse’s negligent driving.
Although no one was injured, extensive property damage was done to two other
vehicles. The owners of the two vehicles claimed compensation for the cost of
repairing their vehicles from the owner of the vehicle that ‘caused’ the accident —
the nurse’s employer.
In the circumstances outlined, the employer would be able to defend such a
claim. The nurse was clearly not acting in the course of employment, having
126
embarked on a frolic of the nurse’s own, contrary to the employer’s express instruc-
tions. Accordingly, the employer would not be vicariously liable and the vehicle
owners would have to recover their damages from the nurse.
In all circumstances it would be sensible for members of nursing staff who drive
a motor vehicle owned by their employer to obtain written guidelines from the
employer as to what person or persons may be transported in the motor vehicle and
whether the motor vehicle may be used for private as well as business use.
In situations where the employer is found to be vicariously liable and has to
compensate the plaintiff, the common law has provided the employer with the right
to recover the money paid out, either wholly or in part, from the negligent employee.
The employer’s right to recover such monies will now be considered.
Contribution and indemnity

This common-law right is largely self-explanatory when viewed within the context
of vicarious liability. The employer has the right to seek total financial indemnity
from the negligent employee, if it can be established that liability for the negligent
act rests solely with the employee. The courts have also determined that such a right
can arise in a contractual sense — that is, between employer and employee. In the
decision known as Lister v Romford Ice and Cold Storage Co Ltd,107 the court was
asked to consider whether an employer had the right to recover damages from an
employee who had driven the employer’s motor vehicle negligently in the course of
employment and injured a third party. The third party sought damages from the
employer based on the negligent driving of the employee and was successful. The
employer then claimed an indemnity from the negligent employee based on,
amongst other points, breach of contract — and was successful. The decision, which
went all the way on appeal to the House of Lords, stated that:
… the employee–driver of the motor vehicle was under a contractual duty
to his employer to exercise reasonable skill and care in driving the vehicle
and, prima facie, he was liable to his employers in damages for breach of
contract if he should fail to exercise that skill and care and if, as a result of
his failure, the employer were held liable in damages to a plaintiff.108
Quite apart from the right to be indemnified, the employer can also seek a finan-
cial contribution from the employee to the extent of the employee’s liability, if it
can be established that liability for the negligent acts rests partly with the employee.
At first glance such common-law rights would appear somewhat harsh and puni-
tive. Admittedly, the decision in Lister v Romford Ice and Cold Storage Co Ltd can
only be described as controversial and has been abrogated in Australia. Reality
reveals that, in Australia, as a matter of common policy, employers do not pursue
their common-law right to recover a contribution or indemnity from employees
and that damage caused by such accidents is covered by insurance taken out by
employers. In fact the Commonwealth Parliament and the parliaments of New
South Wales, the Northern Territory and South Australia have passed legislation
which seeks to prevent employers from recovering monies from employees which
the employers have been required to pay out as a result of being found vicariously
127
liable.109 No such protection exists for the employee if the negligent act arises
from the employee’s serious and wilful misconduct. What would be deemed to be
serious and wilful misconduct is not defined. Such legislation clearly affords a degree
of protection to the employee together with the common policy approach of
employers referred to. However, in those states and territories with no legislative
protection, the common-law principles of contribution and indemnity still prevail,
although, as a matter of policy, it would be surprising if such a right was pursued
in the courts.
Notwithstanding the doctrine of vicarious liability, it is still open to the plaintiff
to bring his or her action against the employee directly if he or she so chooses,
thereby effectively bypassing the employer as a source of financial compensation.
This decision would, for all practical purposes, be constrained by the plaintiff’s need
to ensure that, if he or she is going to succeed in the action, the employee has suf-
ficient personal financial resources to make such a task worthwhile. More often than
not the plaintiff will pursue the employer as the better financial risk. Under the
South Australian legislation referred to earlier, provision is made that, should the
plaintiff bring the action against the employee directly and succeed, the employee
can recover the money he or she has to pay from the employer as long as the
employee has no other form of indemnity insurance. The New South Wales legisla-
tion does not make such provision and certainly there is no such right at common
law as far as the other states or territories are concerned.
The employer’s personal liability

Apart from the application of the doctrine of vicarious liability, the courts have also
imposed a personal liability on the employer directly. That duty cannot be delegated
and is known as a non-delegable duty of care. As far as negligence and healthcare
is concerned, the attitude taken by the courts has been that hospital and healthcare
employers owe a general duty of care to the consumers of the health service. That
duty requires that they provide a safe and competent health service and generally
do all that is reasonable and proper in the delivery of that service to ensure that
patients are not exposed to an unreasonable risk of harm.
Inherent in such a general duty is the duty to employ safe and competent employ-
ees and to provide such employees with appropriate procedural guidelines and
assistance to allow them to carry out their tasks safely and competently. When a
patient or client suffers damage as a result of what a nurse or midwife did or failed
to do in carrying out his or her duties, the fault can often be directed at the employer
as a breach of the employer’s direct personal duty to the patient.
For example, if a trainee enrolled nurse were required to administer complex
medications in a busy medical ward because there were no other nursing staff avail-
able at the time, and the trainee made an error, the employer would not only be
vicariously liable but also personally liable in allowing such a junior and inexperi-
enced member of staff to carry out a task which that staff member was clearly not
trained to do. In such a situation, the likelihood that a mistake could be made and
damage caused to a patient is very real.
128
As stated earlier, the doctrine of vicarious liability revolves around the employer/
employee relationship. Although the great majority of nurses and midwives working
in Australia are employees, as legally understood, some are not. Some are what the
law refers to as independent contractors, or as is more commonly understood, self-
employed people. The most obvious category of such persons would be independent
homebirth midwives or a private duty nurse.
The nurse or midwife as an independent contractor, and his or her liability for
negligence, will now be considered.
The nurse or midwife as an independent contractor

Despite the belief of many nurses and midwives, a nursing agency is generally not
an employer. While it would be necessary to consider the facts and circumstances
(as done in Hollis v Vabu Pty Ltd as detailed above) before a conclusive view could
be expressed, in most circumstances the agency is an agent for the purposes of
finding work for the nurse or midwife, for which it charges the patient or client a
commission. If engaged in such a way, a nurse or midwife should maintain his or
her own professional indemnity insurance policy — particularly if engaged to work
in the patient’s own home. In such a work situation, liability for a negligent act
causing damage would rest squarely with the nurse or midwife, who would then
rely on his or her professional indemnity insurance to pay any damages for which
he or she may be found personally liable. The position may not be so clear when
an agency nurse is employed to work in a public or private hospital, as frequently
happens in times of staffing shortages. If an agency nurse were negligent
while employed in such a manner, the hospital would be personally liable if it could
be shown that it engaged the services of an agency nurse and then required that
nurse to work unsupervised in an area in which it knew, or ought to have known,
he or she was not competent to work; for example, an intensive care unit. Alterna-
tively, on the basis of the organisation test within the doctrine of vicarious liability,
the hospital would be vicariously liable. However, it would still be open to the
plaintiff to bring an action against the nurse on the basis of the nurse’s personal
liability.
Apart from agency nurses, some nurses and midwives are employed directly by
the patient; for example, homebirth midwives. In such a situation, the midwife is
clearly an independent contractor and is required to have professional indemnity
insurance.
As a general rule, because of the variable nature of the work undertaken, agency
nurses as well as homebirth midwives should have professional indemnity
insurance.
Professional indemnity arrangements for healthcare professionals

In November 1995, the Commonwealth Government released its final report on
compensation and professional indemnity in healthcare.110 The report dealt with a
review of professional indemnity arrangements for healthcare professionals and
made the following recommendations (amongst others):
129
On balance the Professional Indemnity Review considers that there are

strong public policy reasons to support Government legislation requiring all
health professionals to have adequate professional indemnity cover as a
condition of practice.111
…
The Professional Indemnity Review recommends that the Commonwealth
and States, through AHMAC (Australian Health Ministers Advisory
Council) develop an agreed strategy for making professional indemnity
cover (with a defined minimum set of characteristics) compulsory for all
health professionals, either through their own cover, or through adequate cover
by their employer in the case of vicarious liability.112 [emphasis added]
That recommendation has been acted upon by the states and territories in the
context of moving to a system of national registration for healthcare professionals.
That system of national registration and the professional obligations arising in rela-
tion to it are covered in detail in this text in the chapter dealing with the professional
regulation of nursing practice (Chapter 8). In order to encompass the national regu-
lation, including the registration of healthcare professionals, each of the states and
territories passed a ‘model law’ with the uniform title of Health Practitioner Regula-
tion National Law. For example, in New South Wales it is known as the Health
Practitioner Regulation National Law (NSW). The provisions of the ‘National Law’
in place in each of the states and territories since 2009 are in identical terms and
cover the registration and accreditation arrangements, complaints and professional
conduct as well as health and performance arrangements of the designated health-
care professions. Nursing and midwifery are included in the scheme which com-
menced operation on 1 July 2010.
One of the provisions in the ‘National Law’ covers professional indemnity insur-
ance. Section 129 requires that a registered health practitioner must not practise in
his or her field of registration unless ‘appropriate professional indemnity insurance
arrangements’ are in force in relation to that practitioner’s professional practice. In
relation to the majority of nurses and midwives who are employed in the public
sector by a hospital or a designated health service (as distinct from independent
contractors), the employer would have public liability and indemnity insurance in
place and the individual nurse or midwife would not need to have her or his own
professional indemnity insurance. In those states where recovery from a negligent
employee, whether on a total indemnity or contribution basis, is prohibited
(New South Wales, the Northern Territory, South Australia and Commonwealth
employees) the issue does not arise. In the other states and the Australian Capital
Territory, it would be expected that, in the public sector, appropriate professional
indemnity insurance arrangements are in place for all healthcare practitioners. In
the private sector, the situation would not be so clear-cut and nurses and midwives
employed in the private sector in the Australian Capital Territory, Queensland,
Tasmania, Victoria and Western Australia should ensure that they inquire about
what ‘professional indemnity insurance arrangements’ are in place at their place of
employment.
130
Those nurses and midwives who are practising as independent contractors must
ensure that they secure appropriate professional indemnity insurance cover. Under
the ‘National Law’ provisions, independent midwives in the course of attending
homebirths have a 2-year exemption from the mandatory requirement for profes-
sional indemnity insurance — that exemption runs from 1 July 2010 and accord-
ingly expires on 30 June 2012.
In New South Wales, in addition to the requirement for mandatory professional
indemnity insurance under the Health Practitioner Regulation National Law (NSW),
section 19 of the Health Care Liability Act 2001 reaffirms the mandatory require-
ment that medical practitioners must have professional indemnity insurance as a
condition of registration and practice. Further, for medical practitioners, section 19
of that Act also states that a failure to have professional indemnity insurance as
required is deemed to be unsatisfactory professional conduct.
Other healthcare professional groups covered by the provisions of the National
Law in relation to the regulation of their profession are: medical practitioners, dentists
and associated dental therapists, physiotherapists, pharmacists, optometrists, podia-
trists, osteopaths, psychologists and chiropractors. Groups such as occupational
therapists and others are scheduled to be regulated under the scheme in 2012.
The nurse or midwife as a good Samaritan

One of the concerns frequently expressed by nurses and midwives is the liability
which they believe will arise if they stop and render first aid at a motor vehicle
accident or other emergency. As a result of misinformation, nurses and other health-
care workers have been actively discouraged for many years from rendering such
assistance, for fear of being sued. Whatever the origins of such a belief, a number
of issues require clarification and certain fears need to be put to rest in relation to
this matter.
As far as the common-law principles are concerned there is no legal duty to stop
and render assistance in any type of emergency, and that includes a motor vehicle
accident. There are some exceptions to that rule.
• There is a legal duty to help where the person requiring assistance is directly
related. For example, if the family home caught fire the law would expect that,
as far as is reasonably possible, the parents would attempt to rescue their
children from the blaze.
• There is a legal duty to help when the person requiring assistance is under the
control of another person where a duty is involved. For example, if a physical
education teacher were involved in a swimming class and one of the students
got into difficulties, he or she would be under a duty to do all that was
reasonably possible in the circumstances to render assistance to the student.
• Specific legislation sometimes requires that a person must render assistance.
For example, the most common legislative provisions apply to motor vehicle
accidents where the requirement to stop and render assistance usually applies
to the drivers of the motor vehicles involved in the accident. No such legal
requirement applies where a person comes across the scene of the accident
while driving.
131
With the exception of Tasmania, the legislative changes to civil liability law
introduced by the states and territories following the Ipp Report incorporated provi-
sions in relation to a person acting as a good Samaritan. For example, section 56
of the Civil Liability Act 2002 (NSW) defines a ‘good samaritan’ as:
… a person who, in good faith and without expectation of payment or
other reward, comes to the assistance of a person who is apparently injured
or at risk of being injured.
As provided by section 57 of that Act, a person acting as a good Samaritan does
not incur any personal civil liability in relation to any act or omission when assisting
a person who is injured or at risk of being injured in an emergency.
The protection from civil liability for a person acting as a good Samaritan does
not apply if it is the good Samaritan’s intentional or negligent act or omission that
caused the injury or risk of injury in respect of which the good Samaritan first
comes to the assistance of the person.
Under section 58, the protection from civil liability for a good Samaritan also
does not apply if:
a) the ability of the good Samaritan to exercise reasonable care and skill was
significantly impaired by reason of the good Samaritan being under the
influence of alcohol or a drug voluntarily consumed (whether or not it was
consumed for medication); and
b) the good Samaritan failed to exercise reasonable care and skill in connection
with the act or omission; and
c) any act or omission is done or made while the person is impersonating a
healthcare or emergency services worker or a police officer or is otherwise
falsely representing that the person has skills or expertise in connection with
the rendering of emergency assistance.
The provisions applying to good Samaritans in the respective legislation of the

other states and territories are set out below.
Australian Capital Territory: See Civil Law (Wrongs) Act 2002 s 5. The ‘good
samaritan’ is defined in similar terms to the New South Wales definition. No civil
liability will attach to a good Samaritan who acts in good faith and without reck-
lessness. That exemption from liability will not attach if the good Samaritan is
significantly impaired by alcohol or drugs.
Northern Territory: See Personal Injuries (Liabilities and Damages) Act 2003 s 8.
The ‘good samaritan’ is defined in similar terms to the New South Wales definition.
No civil liability will attach to a good Samaritan who acts in good faith and without
recklessness.
Queensland: See Civil Liability Act 2003 s 26, which provides that no civil liabil-
ity will attach where a person is rendering first aid or other assistance in an
emergency and who does so in good faith and without reckless disregard for the
safety of the person requiring assistance. As well, see Law Reform Act 1995 s 16,
which states that liability does not attach to a medical practitioner, nurse or
‘other person’ in rendering care, aid or assistance in an emergency if the act was
132
done in good faith and without gross negligence and without expectation of fee or
reward.
South Australia: See Civil Liability Act 1936 s 74, which provides that no civil
liability will attach to a ‘good samaritan’ acting without expectation of reward, and
in good faith and without recklessness who comes to the aid of a person in an
emergency. That immunity will not operate if the good Samaritan’s capacity was
significantly impaired by alcohol or drugs.
Victoria: See Wrongs Act 1958 s 31B. The definition of a ‘good samaritan’ is in
relatively similar terms to that applying in New South Wales. As well, a good
Samaritan is not liable in any civil proceedings for anything done or not done in
good faith.
Western Australia: See Civil Liability Act 2002 ss 5AB and 5AD. The ‘good
samaritan’ is defined in similar terms to the New South Wales definition. No civil
liability will attach to a good Samaritan who acts in good faith and without
recklessness.
In the absence of any legislative provision in Tasmania, the standard that would
apply is that of the common-law principles which is consistent with the legislative
prescription in the other states and territories.
It is puzzling to know why good Samaritan provisions were considered necessary
in the civil liability legislation, particularly when regard is had to the views expressed
by the Ipp Committee in its report on this issue as follows:
The Panel understands that health-care professionals have long expressed a
sense of anxiety about the possibility of legal liability for negligence arising
from the giving of assistance in emergency situations. However, the Panel is
not aware, from its researches or from submissions received by it, of any
Australian case in which a good Samaritan (a person who gives assistance in
an emergency) has been sued by a person claiming that the actions of the
good Samaritan were negligent. Nor are we aware of any insurance-related
difficulties in this area.113
As the Ipp Report confirmed in the above passage, there are no reported cases in
Australia of a person acting as a good Samaritan being sued by a person claiming
that the actions of the good Samaritan were negligent.
Endnotes
1) Ipp Report, Parliament of Australia, Review 7) Bolam v Friern Hospital Management
of the Law of Negligence, Final Report, 2002, Committee (1957) 1 WLR 582.
p viii. 8) Ibid, at 586.
2) Donoghue v Stevenson [1932] AC 562 at 9) Ibid, at 586.
619. 10) Sidaway v Governors of Bethlem Royal
3) Ibid. Hospital (1985) AC 871 at 881.
4) Ibid, at 605. 11) Rogers v Whitaker (1992) 175 CLR 479.
5) [1999] NSWSC 1082. 12) Ibid, at 487.
6) Ipp Report, Parliament of Australia, Review 13) Halverson v Dobler; Halverson (by his tutor) v
of the Law of Negligence, Final Report, 2002, Dobler [2006] NSWSC 1307.
[3.1]. 14) Ibid, at [180].
133
15) Ibid, at [182]. 50) Langley v Glandore Pty Ltd (in liquidation)
16) Rogers v Whitaker (1992) 109 ALR 625 at [1997] QCA 342 (30 October 1997);
631. (1997) Aust Tort Reports 81-448.
17) Ibid, at 632–3. 51) Ibid, at 64,567.
18) Chappel v Hart (1998) 195 CLR 232. 52) Ibid, at 64,567–8.
19) Ibid, [96] at 276–7. 53) Ibid, at 64,569.
20) Ibid. 54) Ibid, at 64,569.
21) Ibid. 55) Elliott v Bickerstaff [1999] NSWCA 453
22) Rosenberg v Percival (2001) 205 CLR 434. (16 December 1999).
23) Langley v Glandore Pty Ltd (in liquidation) 56) Ibid, at [8].
[1997] QCA 342 (30 October 1997); 57) Ibid, at [101].
(1997) Aust Tort Reports 81-448 at 64,560. 58) Ibid, at [102]–[103].
24) Ibid, at 64-567. 59) Coroner’s Inquest into the death of Samara
25) Lahey Estate v Craig (1992) 123 NBR (2d) Lea Hoy, Southport Coroner’s Court,
91. Feb–Jun 2010.
26) Thompson Estate v Byrne (1992) 104 Nfld 60) Ibid, at 4.
and PEIR 9. 61) Ibid, at 6.
27) Versteegh v The Nurses Board of South 62) Ibid, at 6.
Australia (1992) 60 SASR 128. 63) Ibid, at 23.
28) Now regulation 5. 64) Coroner’s Inquest into the death of Timothy
29) BT (as administratrix of the estate of the late John Bice, Adelaide Coroner’s Court,
AT) v Oei [1999] NSWSC 1082. Jul–Aug 1989.
30) Sha Cheng Wang (by his tutor Ru Bo Wang) v 65) Ibid.
Central Sydney Area Health Service (SC 66) Ibid.
(NSW), Hidden J, No. 17083/90, 9 June
67) Ibid.
2000, unreported).
68) McDonald v York County Hospital (1973) 41
31) Ibid, at [39].
DLR (3d) 321.
32) Ibid, at [21].
69) Bergen v Sturgeon General Hospital (1984) 28
33) Ibid, at [48]–[49]. CCLT 155.
34) Ibid, at [64]–[65]. 70) Rogers v Whitaker (1992) 109 ALR 625;
35) Ibid, at [69]. Chappel v Hart (1998) 195 CLR 232.
36) Ibid, at [70]–[71], [76]–[77]. 71) Chappel v Hart (1998) 195 CLR 232 at
37) McCabe v Auburn District Hospital (SC 244.
(NSW), Grove J, No. 11551 of 1982, 31 72) Barnett v Chelsea and Kensington Hospital
May 1989, unreported). (1969) 1 QB 428.
38) Ibid, p 17. 73) Hotson v Fitzgerald (1985) 1 WLR
39) Ibid, p 18. 1036.
40) Ibid, p 31. 74) Fitzgerald v Hotson [1987] 1 All ER 210.
41) Norton v Argonaut Insurance Company 75) Finch v Rogers [2004] NSWSC 39.
(1962) 144 So 2d 249 (Ct App La). 76) Ibid, at [134].
42) Ibid. 77) Ibid, at [147] and [148].
43) Ison v Northern Rivers Area Health Service 78) Tabet v Gett [2010] HCA 12.
(Industrial Relations Court of Australia, 79) Ibid, at [152].
Tomlinson J, No. 44/97, 3 March 1997,
unreported). 80) Ibid, at [111].
44) Ibid, at 3. 81) Overseas Tankship (UK) v Morts Dock &
Engineering Co (1961) AC 388 (PC);
45) Ibid. Overseas Tankship (UK) v Miller Steamship
46) Ibid, at 15. Co (1967) 1 AC 617 (PC).
47) Ibid, at 22. 82) Overseas Tankship (UK) v Miller
48) Ibid, at 24. Steamship Co (1967) 1 AC 617 (PC) at
49) Ibid, at 27. 643–4.
134
83) Compensation (Fatal Injuries) Act 1968 93) Ibid, p 82.

(ACT); Compensation (Fatal Injuries) Act 94) Albrighton v Royal Prince Alfred Hospital
1974 (NT); Supreme Court Act 1995 (Qld); (1980) 2 NSWLR 542.
Civil Liability Act 1936 (SA); Fatal Accidents
95) Albrighton v Royal Prince Alfred Hospital
Act 1934 (Tas); Wrongs Act 1958 (Vic); Fatal
(1979) 2 NSWLR 165 at 166.
Accidents Act 1959 (WA).
96) Albrighton v Royal Prince Alfred Hospital
84) Dust Diseases Tribunal Act 1989 (NSW)
(1980) 2 NSWLR 542 at 543.
s 12A; Limitation Act 1981 (NT) s 12(2)(a);
Limitation of Actions Act 1958 (Vic) 97) Ellis v Wallsend District Hospital (1989) 17
s 27B(2)(a). NSWLR 553.
85) Limitation Act 1985 (ACT) s 16B(2); 98) Ibid, at 600.
Limitation Act 1969 (NSW) ss 18A and 99) Ibid, Samuels JA at 598–9.
50C; Limitation Act 1981 (NT) s 12(1)(b); 100) Ibid, Kirby P at 565–6.
Limitation of Actions Act 1974 (Qld) s 11;
101) Ibid, Samuels JA at 604–5.
Limitation of Actions Act 1936 (SA) s 36;
Limitation Act 1974 (Tas) s 5(1); Limitations 102) Ibid, Kirby P at 568–9.
of Actions Act 1958 (Vic) s 5(1AA); 103) Ibid, Kirby P at 569.
Limitation Act 2005 (WA) s 13(1). 104) Fleming, op. cit., p 421.
86) Civil Law (Wrongs) Act 2002 (ACT) s 102; 105) Chaplin v Dunstan (1938) SASR 245.
Law Reform (Miscellaneous Provisions) Act 106) Storey v Ashton (1986) IR 4 QB 476.
1965 (NSW) s 9(1) and Civil Liability Act
2002 (NSW) s 5R; Law Reform 107) Lister v Romford Ice and Cold Storage Co Ltd
(Miscellaneous Provisions) Act 1956 (NT) (1957) AC 555.
s 16(1); Law Reform Act 1995 (Qld) s 10(1) 108) Extract from the decision of McGrath v
and Civil Liability Act 2003 (Qld) s 23; Law Fairfield Municipal Council (1985) 59 ALR
Reform (Contributory Negligence and 18 at 19 in referring to the decision in Lister
Apportionment of Liability) Act 2001 (SA) s 7 v Romford Ice and Cold Storage Co Ltd
and Civil Liability Act 1936 (SA) s 5K; (1957) AC 555.
Wrongs Act 1954 (Tas) s 4(1) and Civil 109) Insurance Contracts Act 1984 (Cth) s 66;
Liability Act 2002 (Tas) s 23; Wrongs Act Employees Liability Act 1991 (NSW) ss 3 and
1958 (Vic) ss 26(1) and 44; Law Reform 5; Law Reform (Miscellaneous Provisions) Act
(Contributory Negligence and Tortfeasors’ 1984 (NT) s 22A; Civil Liability Act 1936
Contribution) Act 1947 (WA) s 4(1) and (SA) s 59.
Civil Liability Act 2002 (WA) s 5K. 110) Compensation and Professional Indemnity in
87) Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR Healthcare: Final Report, Australian
561. Government Publishing Service, Canberra,
88) Hollis v Vabu Pty Ltd (2001) 207 CLR 21. November 1995.
89) Ibid, at 41. 111) Ibid, recommendation 128.
90) Ibid, at 42–5. 112) Ibid, recommendation 132.
91) Fleming J G, The Law of Torts, 9th ed, Law 113) Ipp Report, Parliament of Australia, Review
Book Company, Sydney, 1998, p 416. of the Law of Negligence, Final Report,
92) Roe v Minister for Health (1954) 2 QB 66. 2002, [7]–[21].
135
Chapter 4
Consent to treatment
(Including the right to withhold consent, end of life planning
and not for resuscitation orders, and the right to detain and
restrain patients without their consent)
Why is consent important?

The area of law studied in this chapter is an area of civil law relating to a trio of
civil wrongs or torts which fall under the collective heading of trespass to the person.
These torts, which are divided into assault, battery and false imprisonment, exist to
protect people’s ‘personal space’. However, for nurses and midwives, this topic is
often referred to as ‘consent’ because the consensual aspect of the law is more readily
identified as relevant to people working in healthcare. In fact, to put consent to
treatment into its proper legal perspective, the consent is in reality a defence to
actions in assault, battery or false imprisonment, which explains why it becomes so
important to healthcare professionals in their daily work.
The principles covering this area of the law are based on common-law principles,
which have been extended by individual state or territory legislation in some areas,
particularly in relation to children.
Assault and battery

Assault can also be, and is most often contemplated as, a criminal offence. However,
as far as staff working in healthcare are concerned, assault as a crime does not have
general application. The criminal offence of assault would not only consist of the
application of force to another person without his or her consent, but would include
the actual intent to cause harm to the person assaulted, or a very high degree of
reckless indifference to the probability of harm occurring to the person assaulted.
It is fortunately rare for such an intention or attitude to prevail among healthcare
personnel. Where it does, it would undoubtedly become a professional disciplinary
matter as well as a criminal matter. Some disciplinary cases involving nurses who
did intentionally harm their patients is discussed briefly in Chapter 8.
As far as the civil law is concerned, there is a technical distinction to be made
between assault and battery, although in common parlance no such distinction is
made and the word assault is often (inaccurately) used to embrace both actions. To
explain the technical distinction, an assault can be committed merely by putting a
person in fear for his or her physical wellbeing; for example, shaking a fist in front
137
of a person’s face and threatening to punch the person could well constitute an
assault. If such a threat were to be carried out, the actual application of the blow
to the person’s body would constitute the technical offence of battery. The offence
of battery, it was famously said, ‘exists to keep people free from “unconsented-to
touchings”’.1 There is current debate about whether this notion of consent, as solely
the protection of ‘bodily integrity’ identified by the English and Australian courts,
as being the purpose of this branch of the law goes far enough, or whether the law
actually goes further and is concerned with ‘rights and duties and control of
destiny’.2
Regardless of its limited or wider application, it becomes clear from the above
why the defence of consent is so important to healthcare professionals, who are
often required to ‘touch’ people in what would normally be extremely private and
personal ways in the course of examination, care and treatment. Often the circum-
stances in which they are required to perform these ‘touchings’ can also be quite
unusual, such as in emergency departments or operating theatres, where the patient’s
mental state may be altered, intentionally or otherwise. Any treatment given to a
patient without the patient’s consent, or the consent of a person entitled to give
such consent on behalf of the patient, constitutes a battery for which the patient is
entitled to be compensated by an award of damages. It is a well-established legal
principle, which the courts will uphold, that ‘every human being of adult years and
sound mind has a right to determine what shall be done with his own body’.3 There
are some exceptions to that statement, which have largely been created by statute.
Some of these are dealt with in this chapter and others in Chapter 11.
Relevance of consent generally

Consent as a defence in law has relevance far beyond the area of treatment to
patients in hospitals or health centres. For example, in the criminal law, the charge
of aggravated sexual assault essentially comprises two elements:
1) that sexual intercourse took place; and
2) that intercourse was without the complainant’s consent.
Clearly, it is the absence of consent which renders an otherwise legitimate act a

crime.
Consent to disclosure of specified private information negates the possibility of
an action for breach of confidentiality in relation to that information. Consent as
a defence also arises for consideration in relation to civil negligence, where it is
otherwise known as the defence of volenti, explained in Chapter 3. Although such a
defence has limited application in hospitals and health centres, it is another example
of the application of consent as a defence in a variety of legal situations, both
criminal and civil.
Negligence must be distinguished

Any consideration of the absence or otherwise of consent to treatment must not be
confused with negligence. Negligence and assault and battery are two distinct and
separate civil wrongs and it is not necessary for a negligent act to precede a battery
138
4 • Consent to treatment
in order for a civil action alleging battery to succeed. As far as any treatment given
to a patient is concerned, it is quite possible that such treatment was competently
given, that the patient suffered no harm and recovered completely, yet the patient
can still succeed in an action in battery if he or she has not consented to the treat-
ment given. The fact that the specific type of ‘touching’ occurred without the
patient’s consent means that a battery has occurred.
The main reason why patients undergo any form of medical treatment is their
belief that their condition will be improved or at least palliated by the treatment
given. Normally, if their condition is improved, most patients are happy to let the
situation rest even if they did not know the precise details of what had happened
to them or even if their treatment was slightly different to that which they had
anticipated. An exception to this is where treatment may be given in disregard of
a person’s moral or religious convictions, and even if the outcome were successful,
the patient may still feel deeply aggrieved.4 In the Canadian case of Malette v
Shulman, where a Jehovah’s Witness was given a life-saving blood transfusion against
her express wishes, she successfully sued in battery, with Robins JA making the
observation that:
The patient manifestly made the decision on the basis of her religious
convictions. It is not for the doctor to second-guess the reasonableness of
the decision or to pass judgement on the religious principles which
motivated it.5
Mrs Malette was seriously injured in a motor vehicle accident in which her
husband was killed. She was taken by ambulance to hospital. She had severe head
and facial injuries and was bleeding profusely. She was initially transfused with
intravenous glucose and Ringers Lactate. On admission a nurse discovered a card
in Mrs Malette’s purse, which identified her as a Jehovah’s Witness, and in which
she requested, on the basis of her religious convictions, that she be given no blood
transfusions under any circumstances. The nurse advised Dr Shulman, the doctor
on duty, of the existence of the card and its contents.
Shortly after admission Mrs Malette’s condition deteriorated sharply and she
became critically ill. Dr Shulman decided that a blood transfusion was necessary to
replace Mrs Malette’s lost blood and preserve her life and health. He personally
administered blood transfusions to her despite the directions on the card found in
her purse and a request by Mrs Malette’s daughter, who had subsequently arrived
at the hospital, that the transfusions be discontinued. When Mrs Malette recovered
from her injuries she sued Dr Shulman for battery on the basis that she had specifi-
cally withheld her consent to blood transfusions as evidenced by the card in her
purse and, in treating her contrary to that express request, Dr Shulman had com-
mitted a battery. Mrs Malette’s action against Dr Shulman was not compromised
by the fact that Dr Shulman had not been negligent in any way. Indeed as the
judgment states:
It is important to note here that Dr Shulman was not found liable for any
negligence in his treatment of Mrs Malette: he had acted promptly and
professionally and was well motivated throughout and his management of
139
the case had been carried out in a competent, careful and conscientious
manner in accordance with the requisite standard of care. His decision to
administer blood in the circumstances confronting him was found to be an
honest exercise of his professional judgment which did not delay Mrs
Malette’s recovery, endanger her life or cause her any bodily harm. Indeed,
the doctor’s treatment of Mrs Malette may well have been responsible for
saving her life.6
Notwithstanding this somewhat unusual situation, as a general rule, it is when
something goes wrong and patients suffer damage as a result of their treatment that
they start to seek further explanations and information. On some occasions, the
care or treatment may have gone wrong because a person has not exercised adequate
care and an action in negligence may be a possible outcome. On other occasions
all the most prudent precautions and competence will still not prevent unforeseen
problems arising. Nevertheless, when something does go wrong, invariably the
patient will want to know what happened, why, who did what and when, or perhaps
whether anyone failed to do something. The process for managing adverse events
and disclosing their occurrence to patients is discussed in Chapter 7, specifically in
relation to the practice of ‘open disclosure’. Depending on the facts and circum-
stances and, more often than not, influenced by the degree of damage that has
occurred and the way in which the adverse event was managed, the patient may
seek legal advice about the appropriateness of making a complaint and/or suing the
doctor, hospital and any other parties the patient feels may have been responsible
for the damage that has occurred. However, Piper and Iedema point out that:
… there are no signs of spikes in medical negligence litigation, health care
complaints or medical board actions in Australia over the last five years as
interest in and enactment of Open Disclosure has increased.7
If the patient chooses to make a complaint, this may be done locally to the hos-
pital or through the relevant healthcare complaints body or registration authority.
In such situations the patient is often concerned that the same mistake does
not happen again, and the purpose is often to improve patient safety, rather
than to seek financial redress. Complaints of this nature are discussed in detail in
Chapter 8.
If, on the other hand, the patient decides to take legal action, the legal action
that may be contemplated will generally revolve around three potential
considerations:
1) professional negligence, either by act or omission;
2) assault and battery in the absence of a valid consent; and/or
3) breach of contract (where a contractual relationship exists between the patient
and the provider of treatment).
The first two potential causes of action, negligence and battery, often overlap,
and this can confuse the layperson. This overlap of actions is often described (erro-
neously in Australia) as informed consent. For legal purposes, as is demonstrated
above, there are two distinct areas of law in play here. The question of adequately
140
informing a patient in ‘broad terms of the nature of the procedure which is

intended’ is critical to the issue of obtaining a valid consent as a defence to an action
in battery.8 However, the failure of a medical practitioner to inform a patient
adequately about the treatment he or she is to undergo, particularly the material
risks involved and likely outcome of any proposed treatment, can and has been
determined by the courts to be negligence.9 Such a failure will, more often than
not, be deemed to be a breach of the doctor’s duty of disclosure, as part of his or
her duty of care to the patient. That important distinction, together with the rel-
evant cases and the views expressed by the courts, is set out in Chapter 3.
Remember that, in any allegation of negligence, the patient must prove all the
necessary elements, including the fact that he or she has suffered some form of
recognisable damage. As far as any action in battery is concerned, the patient does
not have to prove damage, but rather an intentional touching and the absence of
consent to the treatment given. The amount of compensation awarded by a court
in such a situation may be nominal when compared to the compensation awarded
if the patient were damaged and could prove negligence. Nevertheless, it is possible
for a patient to bring an action seeking compensation for battery in the absence of
any negligence on the part of the person concerned, an absence of any physical
harm to the person bringing the action and solely on the basis that consent was not
given to the type of touching which occurred. The case of Malette v Shulman dis-
cussed above made precisely this point.10 Although the decisions of Canadian courts
are not binding on Australian courts, they would be considered to be persuasive
precedent. The case is particularly interesting because it demonstrates the distinction
between an action in negligence and battery and at the same time it reinforces the
right of a person to withhold consent to treatment — in this case, a blood
transfusion.
Despite the above comments the court upheld Mrs Malette’s claim against
Dr Shulman on the basis that he had violated Mrs Malette’s ‘rights over her own
body by acting contrary to the Jehovah’s Witness card and administering blood
transfusions that were not authorised’.11 The court awarded Mrs Malette $20 000
damages but declined to make any award of costs; that is, Mrs Malette would have
had to pay her own legal costs out of the damages awarded. Compared with the
amount of damages awarded by courts today for negligence actions, Mrs Malette’s
damages of $20 000 for battery would certainly be considered nominal, particularly
as she had to pay her own legal costs. In a number of more recent cases involving
blood transfusions and Jehovah’s Witnesses, not all the decisions are as clear-cut as
this one.12 However, Malette v Shulman does provide a clear example of what the
tort of battery is intended to do, which is to uphold the right of individuals to
control what happens to their own body.
What information is available to help professionals and patients?

Clearly these matters are extremely complex and there are many useful documents
available to assist healthcare professionals and consumers alike both to understand
the law and to provide the best available information and practices. For healthcare
professionals, there is a range of useful information; for example, the National
141
Health and Medical Research Council (NHMRC) publication, General Guidelines

for Medical Practitioners on Providing Information to Patients.13 The NHMRC has
also produced a companion document, Communicating with Patients: Advice for
Medical Practitioners.14 Although these documents inexplicably only refer to the
information and communication practices of medical practitioners, they will be of
equal value for nurses and allied healthcare practitioners who provide information
about treatment and care for patients. State and territory governments also produce
comprehensive policy documents relating to consent for medical treatment. Links
to two state policy examples (WA, 2010 and NSW, 2005) are provided in the end-
notes; each is extremely comprehensive and a valuable resource for any healthcare
professional who wishes to understand not only the law but also how the law oper-
ates in practice.15 In addition, there are many useful consumer information docu-
ments — some developed by government and others developed by consumer
organisations, such as the Fitzroy Legal Service Inc. in Victoria, which provides
accessible information about the law and what people are entitled to expect. Con-
sumer organisations such as the Consumer Health Forum also give sound advice
and provide lists of questions to ask.16
How may consent be given?

It is helpful to remember that the word ‘consent’ comes from the Latin consensere,
meaning ‘to agree’. Thus, consent is an agreement between two parties, and requires
a level of common understanding. When considering the question of consent, it is
generally stated that it is necessary for a patient to give a valid consent. The use of
the term ‘valid consent’ simply denotes the necessity to ensure that any consent
given comprises certain elements; otherwise the consent will be invalid. The ele-
ments that comprise a valid consent apply regardless of the way in which consent
is given. Consent can be given in the following ways:
• impliedly;
• expressly — verbally;
• expressly — in writing.
Implied consent to treatment can be given in a variety of ways and is most often
used as the method of giving consent to a simple procedure of common knowledge.
For example, a nurse might request a patient to hold out his or her arm to have
their blood pressure taken, or to roll over onto their back preparatory to being lifted
out of bed, and the patient’s compliance with such a request would normally imply
consent to that process or intervention. Even though a patient may appear to be
implying consent for the intended procedure by their actions, it is good practice to
explain fully to the patient what you are going to do, regardless of any behaviour
that you may take to imply consent. In addition, the element of common knowledge
means that it is not sufficient to make the claim that a person has given consent to
a treatment ‘simply by turning up at the hospital’. In the 1984 deep sleep therapy
(DST) case of Hart v Herron, the Supreme Court held that turning up at the hos-
pital was not sufficient to imply consent for treatment, and the defendant was found
to be liable in battery for administering the DST.17 DST does not constitute a simple
142
procedure of common knowledge. Quite clearly it is not possible to consent to

a procedure about which you have neither knowledge nor understanding, as a
person cannot agree to that which they have not contemplated.
Verbal consent is probably the most common form of consent occurring in relation
to simple procedures both in hospitals and health centres. Both verbal and written
consents are often described as express consent; that is, the person has expressly
indicated that they consent to the procedure or intervention, rather than the health-
care practitioner having to make assumptions by implication. For an example of an
express verbal consent, in both hospitals and the community in the great majority of
cases, a conversation takes place between the doctor and the patient concerning the
patient’s condition and/or medical history. The conversation is usually accompanied
by a medical examination and/or some preliminary tests. At the conclusion of the
conversation the medical practitioner will advise the patient about his or her diag-
nosed or potential condition, describe the recommended treatment for the patient,
what medication should be taken and/or whether admission to hospital or other
treatment is required. Almost inevitably the patient accepts the doctor’s advice and
agrees (that is, consents) to undergo the treatment suggested by the doctor. What is
happening, of course, is that the patient is verbally consenting to treatment, often in
the form of medications. No form has been signed, nor need it be when consent is
given in such circumstances. Similarly, a nurse who is going to undertake a proce-
dure, such as a complex wound dressing, will inevitably explain what they are going
to do, describe how they are going to do it and elicit the patient’s assistance should
that be necessary. The patient will usually verbally agree to the process, may seek
clarification about anything they are unclear about and will then provide whatever
assistance is necessary to enable the nurse to carry out the dressing.
A consent in writing, in the form of either a standard or specialised written consent
form, is generally nothing more than documentary evidence of what has already
been consented to verbally by the patient. In many ways the function served by a
written consent form parallels the function of a contract made in writing. It is quite
possible to create a legally binding contract between two parties by verbal agreement
without recourse to a document, as long as the elements of a simple contract exist.
In general terms, therefore, the main function that a written consent fulfils is to
express in writing what has been verbally agreed to between the parties. There is no
general legal principle that states that consent forms must exist and be signed before
a patient can be treated, although there are now a number of situations where either
law or policy requires consent in writing. For example, the Western Australian (WA)
Department of Health Office of Safety and Quality in Health Care, in its Consent
to Treatment Policy for the Western Australian Health System, requires written consent
in the following situations:
• surgical, medical, radiology, oncology and endoscopy treatments or procedures
requiring general, regional or local anaesthesia, or intravenous sedation;
• invasive treatments or procedures where there are known significant risks or
complications;
• sterilisation of a minor and the application of electroconvulsive therapy
(special circumstances apply);
143
• administration of medications with known high-risk complications, or new

unusual medications which may have risks;
• drugs administered under the Special Access Scheme;
• participation in clinical trials and medical research.18
The critical element that a completed written consent form provides, on the face
of it, is documentary evidence that consent was given, should a dispute arise over
that point. Having said that, a written consent in no way guarantees that the consent
given is a valid one — that is another issue completely. It is true to say that a consent
form is only as good or as valid as the quality of the consent or agreement that has
been made and that it represents. It is the validity of the consent that goes to the
heart of the procedural requirements, and not the signing of a piece of paper.
What are the elements of a valid consent?

The validity of any consent, however given, will only be satisfied if the three ele-
ments that constitute a valid consent are present. Those elements are:
1) that any consent given is freely and voluntarily given;
2) that any consent given is properly informed; and
3) that the person giving consent has the legal capacity to give it.
We will now examine each of these in turn.
Any consent given is freely and voluntarily given

This means that any consent given by a patient must be given without any
fraud, duress or coercion being applied by the medical practitioner or other member
of staff in order to obtain the patient’s consent. As a general rule, medical and
nursing staff do not deliberately seek to apply fraudulent or coercive measures on
patients to obtain their consent, but can do so unwittingly in a variety of ways. For
example:
• if a healthcare practitioner advises a patient that he or she must have a
particular form of treatment or else he or she will be discharged;
• the authoritative role of a healthcare practitioner may introduce an element of
coercion into the consent procedure on the basis of ‘I know what’s best for you’.
If it can be established that any coercion or duress was brought to bear on a

patient in order to obtain his or her consent, that consent will be invalid.
Sadly, on occasions nurses have been involved in deceptions to obtain consent,
as shown in the Royal Commission into Deep Sleep Therapy, which investigated
the practices of a psychiatrist and his colleagues who admitted mentally ill patients
to a private hospital (Chelmsford) and gave them the ‘special treatment’ of barbi-
turate-induced coma and sometimes adjuvant electroconvulsive therapy. Over the
ensuing 16 years until 1979, at least 24 people died as a direct result of the DST.
This excerpt from the testimony of one nurse gives an example of how deception
was used to implement the DST.
144
Some who did know, if they refused to sign the consent form, then the
instruction was that you gave them some medication to quieten them down;
that’s what you would say, ‘I’ll give you this little injection now, it will calm
you down. You will feel a lot better after it’. But of course that little
injection was Sodium Amytal and I think some Valium as well and then of
course they were off on the sedation.19
Whilst no action was taken against any nurses as a result of the events at Chelms-
ford, this excerpt provides a clear example of how deception might be employed to
obtain consent to treatment. Such behaviour is clearly not acceptable and would
negate consent.
The patient is informed ‘in broad terms of the nature of the procedure
which is intended’20
This element probably gives the greatest concern to nursing staff, largely because of
the problems that arise in relation to written consent forms. From a strictly legal
perspective the term ‘informed consent’, that can be traced to early American deci-
sions,21 is no longer considered to be appropriate, confusing as it does the require-
ment for consent in defence to actions in battery and the requirement to give
information about material risks, the absence of which forms one of the elements
of an action in negligence. However, in the practicality of explaining a procedure
to a patient there is an alignment of the two processes, as people need not only to
be informed in broad terms (thus providing a defence against an action in battery)
but also to be informed about the material risks (thus providing a defence against
a potential action in negligence).
Perhaps a helpful way to think about the issue is to consider the concept of giving
information (and informed consent) in general, everyday terms. On a day-to-day
basis people make decisions on a whole variety of issues which affect their lives —
whether it be to buy a house or a new car, take an overseas holiday, take out insur-
ance or change jobs. In making decisions on such major issues, people obtain relevant
information which will help them to decide whether or not to go ahead with a
particular proposal; for example, cost, finance available, repayments, access to public
transport and schools, career opportunities and so on. A person will then assess the
various alternatives available before coming to a final decision on the matter. The
gathering together of the information needed to arrive at the most appropriate deci-
sion constitutes the informed element of the consent process. It is much the same
situation when considering whether or not to consent to a particular medical treat-
ment. Obviously the consequences of making a decision about healthcare are far
more serious than deciding whether or not to buy a new car, thereby only increasing
the need for information and care. Nevertheless, the principle is the same.
In Australia two questions arise from the fact that information must be given to
a patient when he or she is being asked to consent to a treatment:
1) How much information does the patient require to make a decision to consent
to treatment?
2) Who is responsible for giving sufficient information to a patient?
Let us consider each in some detail below.
145
HOW MUCH INFORMATION DOES THE PATIENT REQUIRE TO MAKE A DECISION

TO CONSENT TO TREATMENT?
At this point it is necessary to restate that, invariably, when this issue is considered
it is done within the context of negligence, having regard to the perceived duty
of the doctor to inform the patient adequately about the material risks inherent in
any proposed treatment, and readers should refer to the cases on this issue in
Chapter 3. That is not to suggest that an action in battery cannot or should not be
pursued. It simply reflects the views expressed by the courts in Australia and else-
where, particularly in England, on this issue. Indeed the decision of the High Court
of Australia in Rogers v Whitaker makes it quite clear that actions against medical
practitioners alleging inadequacy of information about a proposed treatment should
properly be considered as part of the medical practitioner’s duty of care within the
context of an action in negligence.22 The facts of Rogers v Whitaker are set out in
Chapter 3, and should be referred to. The facts reveal that Mrs Whitaker received
precisely the treatment to which she had consented, thus there could be no success-
ful action in battery. In unanimously dismissing Dr Rogers’ appeal the High Court
made the following comment on the issue of informed consent:
In this context nothing is to be gained by reiterating the expressions used in
American authorities such as ‘the patient’s right of self-determination’ or
even the oft-used and somewhat amorphous phrase ‘informed consent’. The
right of self-determination is an expression which is, perhaps, suitable to
cases where the issue is whether a person has agreed to the general surgical
procedure or treatment, but is of little assistance in the balancing process
that is involved in the determination of whether there has been a breach of
the duty of disclosure. Likewise, the phrase ‘informed consent’ is apt to
mislead as it suggests a test of the validity of the patient’s consent. Moreover
consent is relevant to actions framed in trespass, not in negligence. Anglo-
Australian law has rightly taken the view that an allegation that the risks
inherent in a medical procedure have not been disclosed to the patient can
only be found an action of negligence and not in trespass; the consent
necessary to negative the offence of battery is satisfied by the patient being
advised in broad terms of the nature of the procedure to be performed.23
[emphasis added]
In 2004 the NHMRC updated its General Guidelines for Medical Practitioners on
Providing Information to Patients.24 The advice on the content of the information is
set out in Box 4.1.
In addition to the advice about the content of the information to be presented
when obtaining consent to treatment, the document also provides valuable advice
on presenting and withholding information, which is set out in Box 4.2.
Having regard to all of the above, the issue of how much information a person
requires to decide to consent to treatment can be summarised as follows:
• the information element of a valid consent is the gathering together of the
information needed to allow a patient to arrive at a decision that the patient
believes is in his or her own best interests;
146
BOX 4.1
CONTENT OF INFORMATION TO BE GIVEN WHEN OBTAINING
CONSENT TO TREATMENT
Information to be given
Doctors should normally discuss the following information with their patients:
• the possible or likely nature of the illness or disease;
• the proposed approach to investigation, diagnosis and treatment:
– what the proposed approach entails
– the expected benefits
– common side effects and material risks of any intervention
– whether the intervention is conventional or experimental
– who will undertake the intervention
• other options for investigation, diagnosis and treatment;
• the degree of uncertainty of any diagnosis arrived at;
• the degree of uncertainty about the therapeutic outcome;
• the likely consequences of not choosing the proposed diagnostic procedure or
treatment, or of not having any procedure or treatment at all;
• any significant long-term physical, emotional, mental, social, sexual, or other
outcome which may be associated with a proposed intervention;
• the time involved; and
• the costs involved, including out-of-pocket costs.
1. Informing patients of risks

Doctors should give information about the risks of any intervention, especially those
that are likely to influence the patient’s decisions. Known risks should be disclosed
when an adverse outcome is common even though the detriment is slight, or when
an adverse outcome is severe even though its occurrence is rare. A doctor’s judgment
about how to convey risks will be influenced by:
• the seriousness of the patient’s condition; for example, the manner of giving
information might need to be modified if the patient were too ill or badly injured
to digest a detailed explanation;
• the nature of the intervention; for example, whether it is complex or
straightforward, or whether it is necessary or purely discretionary. Complex
interventions require more information, as do interventions where the patient has
no illness;
• the likelihood of harm and the degree of possible harm; more information is
required the greater the risk of harm and the more serious it is likely to be;
• the questions the patient asks; when giving information, doctors should
encourage the patient to ask questions and should answer them as fully as
possible. Such questions will help the doctor to find out what is important to the
patient;
• the patient’s temperament, attitude and level of understanding; every patient is
entitled to information, but these characteristics may provide guidance to the
form it takes; and
• current accepted medical practice.
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BOX 4.2
ADVICE ON PRESENTING AND
WITHHOLDING INFORMATION
2. Presenting information
The way the doctor gives information should help a patient understand the illness,
management options, and the reasons for any intervention. It may sometimes be
helpful to convey information in more than one session. The doctor should:
• communicate information and opinions in a form the patient should be able to
understand;
• allow the patient sufficient time to make a decision. The patient should be
encouraged to reflect on opinions, ask more questions, consult with the family, a
friend or advisor. The patient should be assisted in seeking other medical opinions
where this is requested;
• repeat key information to help the patient understand and remember it;
• give written information or use diagrams, where appropriate, in addition to talking
to the patient;
• pay careful attention to the patient’s responses to help identify what has or has
not been understood; and
• use a competent interpreter when the patient is not fluent in English.
3. Withholding information

Information should be withheld in very limited circumstances only:
• if the doctor judges on reasonable grounds that the patient’s physical or mental
health might be seriously harmed by the information; or
• if the patient expressly directs the doctor to make the decisions, and does not
want the offered information. Even in this case, the doctor should give the patient
basic information about the illness and the proposed intervention.
• if there were to be any statement of general legal propositions applicable in

Australia, it would be that, in obtaining a valid consent, a patient must be
given sufficient information to be able to understand the nature and
consequences of the proposed treatment; and
• failure to advise and inform a patient properly about the nature and
consequences of the proposed treatment as well as its material risks would, in
most instances, amount to a breach of the doctor’s duty of care, which could,
should damage ensue, make the doctor liable in negligence, quite apart from
any action in battery.
WHO IS RESPONSIBLE FOR GIVING SUFFICIENT INFORMATION TO A PATIENT?

At first glance there would be no doubt that the responsibility for giving the patient
sufficient information to enable him or her to make an informed decision rests
148
with the primary treating healthcare practitioner. In some situations where no

doctor is involved, the responsibility would rest with the person in charge of the
case. For example, in the case of a homebirth conducted by a homebirth midwife
with no obstetrician involved, the responsibility for giving the patient sufficient and
relevant information rests with the midwife. Likewise, where the treating healthcare
practitioner was a nurse practitioner, the primary responsibility would rest with the
nurse practitioner. This situation has been recognised in policy. For example, the
New South Wales Policy Directive PD2005_406 states that:
… authorised nurse practitioners may initiate medications, order diagnostic
tests and make referrals only when they are operating under guidelines
approved by the Director-General. Nurse practitioners have the same
obligations as do medical practitioners, when obtaining consent for the
procedures which they are authorised to perform.25
Until recently, the usual situation encountered in hospitals and health centres
would be that the treating doctor would carry responsibility for informing the
patient about the treatment he or she has consented to undergo. Two questions are
regularly raised by nursing (and sometimes midwifery) staff in relation to this:
1) What is the scope of responsibility for a nurse (or other healthcare employee)
who is asked to obtain a patient’s signature for a consent form?
2) What are the professional responsibilities of nurses and midwives to inform
patients of aspects of their treatment if they believe they have not been fully
explained by the treating healthcare practitioner? Alternatively, what are the
nurses’ and midwives’ professional responsibilities when a patient asks them for
advice about the appropriateness of the treatment he or she is having?
This second group of professional dilemmas often arises in relation to treatments

which patients undergo on the advice of their treating doctor in terminal illnesses;
for example, chemotherapy, radiotherapy and radical surgery.
Both of these issues will now be examined.
Written consent forms
For many years hospitals insisted that nurses (or other administrative personnel)
were responsible for obtaining a patient’s signature on consent forms. It is pleasing
to note that key policy documents have now placed the responsibility primarily
where it rightfully belongs — with the medical officer or other treating practitioner
concerned. The policy allows for delegation, but not abrogation, of responsibility.
The New South Wales Ministry of Health policy on consent to treatment has this
to say:
Where a practitioner recommends or advises that a patient undergo an
operation, procedure or treatment, they will be responsible for ensuring they
provide sufficient, appropriate and relevant information and advice to enable
the patient to make their own decision to undergo the operation, procedure
or treatment. Once again, this does not mean that they cannot have another
person undertake that task, although they may be held responsible in some
circumstances if this is not done properly.26
149
Legally any person over the age of 18 years and of sound mind may witness a
patient’s signature on a consent form. This argument is the one most often raised
by medical practitioners, who state that they should not be required to witness a
patient’s signature on a consent form because it can legally be done by any member
of staff. This comment is in fact correct in this situation: there is no requirement
for any specific person to witness a signature. However, it does nothing to address
the concerns often raised by nursing and midwifery staff about witnessing the
consent form, as the signing of the form often brings about a plethora of questions
heretofore unasked. This is where it is important to remember that, if the patient
has agreed to come into hospital for treatment, it is usually on the basis of the advice
of the medical practitioner. Therefore, as a matter of commonsense and good prac-
tice, it is the medical practitioner who should witness the patient’s written consent
to that treatment, particularly when the procedure is an elective procedure.
In hospitals where such a task is still designated to the nursing staff (or indeed
administrative staff ) the only role that the staff member plays in obtaining the
patient’s signature is to witness that signature. Witnessing a patient’s signature in
no way imposes on the staff member a responsibility for informing the patient of
the nature and extent of the procedure to which the patient is consenting. If a nurse
or midwife is required to ask a patient to sign a consent form, they should observe
the following steps. (See also Box 4.3 for the status of written consent forms.)
• Always ensure that the consent form is completely filled in. A patient should
never be asked to sign a blank consent form.
• If a patient wishes to alter the consent form in any way by adding or crossing
out words, then the nurse or midwife must advise the treating practitioner as
soon as possible.
• If a patient starts to ask questions concerning the nature and extent of the
procedure to which the patient is consenting, the nurse or midwife should
offer to ask the patient’s treating doctor to come and talk to the patient. In
contacting the treating practitioner, the nurse or midwife should make a
BOX 4.3
STATUS OF WRITTEN CONSENT FORMS
Finally, nurses and midwives should remember that a signed written consent form in
no way guarantees that the consent is a valid one. To determine validity, it is necessary
to ensure that all the principles of a valid consent were present when the agreement
was reached as to the nature and extent of the treatment to be undergone. The mere
mechanical signing of a standard form of consent at the request of a member of the
hospital staff is, by itself, of limited value. What is important is that the patient has
been given adequate information and advice so that there is a genuine understanding
of the nature of the treatment and the significant risks inherent in it, and has agreed
to the treatment on that basis.
150
relevant entry in the patient’s records, as well as noting the practitioner’s

response to the request.
• If a patient refuses to sign a consent form, the treating practitioner must be
advised and a relevant entry made in the patient’s record. In a hospital, the
appropriate administrative personnel should also be advised.
The professional responsibility to inform
Nursing and midwifery staff do have a professional responsibility to educate
patients and to provide secondary information about a particular treatment, once
the course of treatment has been agreed upon. Nursing staff are often questioned
by patients about the treatment they are undergoing. They are the most frequent
source of contact and conversation in a hospital and patients often relate readily to
the nursing staff for that reason. It is completely appropriate for nursing staff to
provide the best advice and information available and to answer patients’ questions
honestly and helpfully in relation to the agreed treatment, and significant advantages
are known to attach to the provision of pre-operative information.27 However, there
have been occasions where nurses have found themselves in the difficult position
of caring for a patient who, they believe, has not received sufficient information
concerning the particular treatment he or she is undergoing or the alternative
courses of treatment which may be available to the patient. The most frequent
problem has been in relation to the treatment of patients for various types of cancer,
which quite often involves the administration of large doses of cytotoxic drugs and
radiotherapy. This type of treatment often results in physically and mentally distress-
ing side effects for the patient which, if the patient’s life expectancy is quite limited,
can cause many healthcare professionals to question the efficacy of the treatment.
In such a situation the nurse must carefully assess his or her professional position
before seeking to intrude on the patient–doctor relationship.
There have been occasions where nursing or midwifery staff have become con-
cerned and openly critical about the standard of care being practised by a nursing
or medical colleague. The problem becomes particularly difficult when the criticism
is directed at a medical practitioner who the nursing or midwifery staff believe is
giving unsafe and/or inappropriate medical care to a patient.
If a member of the nursing or midwifery staff is genuinely concerned about the
standard of care being delivered by a professional colleague, that concern should
first, as a matter of courtesy and commonsense, be dealt with by discussing it directly
with the professional colleague involved. If those direct discussions do not resolve
the problem it should then be expressed formally to the appropriate administrative
personnel. Sometimes, a nurse or midwife may feel unable to initiate such a con-
versation, and if they are genuinely concerned about a matter of safety, it is impera-
tive that they discuss the matter with more senior professional staff who could take
the matter up on their behalf. However, it is important that the concerned person
has clear information and evidence to support their concern. It may be that the
matter can be resolved at that level by discussions between the parties concerned.
If such an approach is unsuccessful and the criticisms expressed are valid, then
as of 1 July 2010, there is a mandatory requirement under the new Health Practi-
tioner Regulation National Law Act 2009 (Qld) (discussed in more detail in Chapter
151
8) to report ‘notifiable conduct’ by a colleague to their relevant professional registra-

tion board. Notifiable conduct is defined under the Act as meaning that the regis-
tered healthcare practitioner has:
• practised the practitioner’s profession while intoxicated by alcohol or
drugs; or
• engaged in sexual misconduct in connection with the practice of the
practitioner’s profession; or
• placed the public at risk of substantial harm in the practitioner’s practice of the
profession because the practitioner has an impairment; or
• placed the public at risk of harm because the practitioner has practised the
profession in a way that constitutes a significant departure from accepted
professional standards.28
In doing so, criticisms that form the subject of the complaint should be supported
by objective and factual documentation. At no time should such professional criti-
cisms become the subject of general gossip, particularly outside the hospital where
some people may be only too ready to believe such criticisms. If this happens, then
that person’s professional reputation may be irreparably damaged and the person
would have legitimate resort to an action in defamation.
In recent years, there has been a greater emphasis on a systems approach to
problems and errors in healthcare. Human beings make mistakes29 and healthcare
professionals are no exception.30 The aviation industry has already undertaken a
considerable amount of work and has developed the concept of crew resource man-
agement, which creates the imperative for each member of the aviation team to
speak out forcefully if he or she believes there is any problem.31 This work is being
replicated in the healthcare sector and there is a prevailing view that all healthcare
professionals have a responsibility to speak up (appropriately, as discussed above)
to avoid adverse incidents occurring and to report adverse events so that analysis
can occur and preventative strategies can be implemented. A strategy for helping
those staff who may feel unable to speak out about healthcare concerns is known
as graded assertiveness. Curtis et al. (2011) provide an example of escalation of
expressions of concern, set out in Figure 4.1.32
THERAPEUTIC PRIVILEGE
In some limited situations the law will recognise that, although there may well be
a general duty to disclose what is reasonable and necessary in the circumstances, an
exception can arise. The usual situation is where the treating doctor elects to use
what is termed therapeutic privilege; that is, the doctor chooses not to disclose infor-
mation to a patient that he or she believes would be detrimental to the patient’s
best interests, generally for mental health reasons.
As the general guidelines issued by the NHMRC33 and set out in Box 4.2 state,
that significant information should not be withheld except in the very limited cir-
cumstances referred to in the guidelines, namely:
152
• if the doctor judges on reasonable grounds that the patient’s physical or mental
health might be seriously harmed by the information; or
• if the patient expressly directs the doctor to make the decisions, and does not
want the offered information. Even in this case, the doctor should give the
patient basic information about the illness and the proposed intervention.
To widen the application of therapeutic privilege beyond the circumstances
referred to would run counter to the general duty to inform. The issue of therapeutic
privilege was also raised in Chapter 2 in the discussion on ethics.
Figure 4.1 Levels of graded assertiveness and examples
The person giving consent has the legal capacity to give

such consent
Legal capacity or competence to give or refuse consent has a number of components,
whether it relates to mental capacity or age. These were identified in the English
case of Re C (Adult: Refusal of Treatment), which addressed the question of whether
a man who suffered from a mental illness was capable of refusing treatment to
amputate a limb which was gangrenous.34 Here Thorpe J determined that he had
capacity, and defined capacity as a sufficient understanding of ‘the nature, purpose
and effects of the proffered treatment’.35 Devereux and Parker (2006) make the
point that the concept of competency has both an ethical and a legal function. From
an ethical perspective, ‘competency operates as a gatekeeper’ and tells us ‘which
bioethical principle, respect for autonomy or beneficence, should take precedence
in any particular patient’s case’.36 From a legal perspective, competency again acts
as a gatekeeper in that it forms one of the elements of a valid consent. Devereux
and Parker provide a comprehensive list of abilities generally agreed to be required
for competency. The competent individual needs to be able to:
153
• receive, understand and recall relevant information;

• integrate the information received and relate it to one’s situation;
• evaluate benefits and risk in terms of personal values;
• rationally manipulate the information in order to select an option, and give
cogent reasons for the choice;
• communicate one’s choice to others; and
• persevere with the choice until the decision is acted upon.37
Readers may be able to identify a range of people who would struggle to meet
all these criteria, and there are a number of exceptions to the general rule, which
will be dealt with as required.
ADULTS AND CONSENT

Any person over 18, barring any mental incapacity, can clearly give and withhold
consent to treatment. Yet even with adults, situations arise where the issue of consent
to treatment or otherwise needs to be carefully considered. The common-law and
statutory situations that may arise for consideration in the provision of healthcare
services to adults where consent may need to be obtained from a third party, or
may not be necessary, will now be examined.
An adult who lacks the intellectual capacity to make a decision

The disability rights movement of the 1960s brought recognition of groups of
people who may lack the capacity to make decisions for themselves yet who need
access to the same services and opportunities as everyone else in the community.
Over the ensuing 20 years each jurisdiction in Australia enacted legislation to
protect the rights of adults who, for whatever reason, lacked the full capacity to
make their own decisions.38 In addition, the United Nations’ Convention on the
Rights of Persons with Disabilities (CRPD) and its Optional Protocol were adopted
at the United Nations Headquarters in New York on 13 December 2006, and
entered into force internationally on 3 May 2008.
The Intellectual Disability Rights Service (IDRS) explains that Australia was one
of the first countries to ratify the CRPD, on 17 July 2008. Its purpose is ‘to promote,
protect and ensure the full and equal enjoyment of all human rights and funda-
mental freedoms for all people with disability, and to promote respect for their
inherent dignity’.39 A number of the Articles are identified by the IDRS as bearing
on the fundamental principles of autonomy, personal decision-making and self-
determination and they include:
• Non-discrimination (Art 4);
• Equal protection before the law (Art 5);
• The right to equal recognition before the law (Art 12);
• Access to justice on an equal basis with others (Art 13);
• Freedom from exploitation, violence and abuse (Art 16);
154
• Protecting the integrity of the person (Art 17);

• Freedom of expression and opinion, and access to information (Art 21).40
To help make decisions for people where their full understanding of the nature
and consequences of the decision may be absent or less than optimal, a statutory
guardianship framework has been developed to ensure that they receive the best
support and that the best possible decisions are made with or for them. There is
now an excellent website that sets out to provide case law and explanations about
guardianship law in Australia as it is generally poorly understood.41
The decision-making requirements for an adult are complex and important and
include such aspects as accommodation, healthcare and health services, and medical
and dental treatment. Usually, financial decisions and management are subject to
more intensive and/or circumscribed scrutiny. Section 4(2) of the Guardianship and
Management of Property Act 1991 (ACT) identifies a set of principles to be followed
by a decision-maker acting for a protected person:
a) the protected person’s wishes, as far as they can be worked out, must be
given effect to, unless making the decision in accordance with the wishes
is likely to significantly adversely affect the protected person’s interests;
b) if giving effect to the protected person’s wishes is likely to significantly
adversely affect the person’s interests — the decision-maker must give
effect to the protected person’s wishes as far as possible without
significantly adversely affecting the protected person’s interests;
c) if the protected person’s wishes cannot be given effect to at all — the
interests of the protected person must be promoted;
d) the protected person’s life (including the person’s lifestyle) must be
interfered with to the smallest extent necessary;
e) the protected person must be encouraged to look after himself or herself
as far as possible;
f ) the protected person must be encouraged to live in the general
community, and take part in community activities, as far as possible.
For the purposes of this chapter, the most important aspect of the guardianship
framework is the ability of another person to consent to medical and dental treat-
ment on behalf of the adult who is unable to make the decisions. This consent is
known as a ‘substitute consent’ and occurs ‘where a person or agency other than
the patient gives consent for medical or dental treatment … This can only occur in
accordance with the legislation or an order of the … [relevant institution]’.42
To administer this decision-making framework, each jurisdiction has legislation
that sets out the rules and parameters for the decision-making. Although all juris-
dictions have similar elements, the detail of the legislation does vary between juris-
dictions, and nurses will need to acquaint themselves with government policy in
relation to guardianship provisions in their own state or territory. The various stat-
utes for each jurisdiction are shown in Table 4.1.
Some statutes set out the objects of the Act and this enables the reader to under-
stand the reasons why parliament enacted the legislation. Some go even further and
155
Table 4.1
Legislation applying to guardianship decision-making framework
State or territory Statute
Australian Capital Territory Guardianship and Management of Property Act 1991
New South Wales Guardianship Act 1987
Northern Territory Adult Guardianship Act 1988
Queensland Powers of Attorney Act 1998
Guardianship and Administration Act 2000
South Australia Guardianship and Administration Act 1993
Tasmania Guardianship and Administration Act 1995
Victoria Guardianship and Administration Act 1986
Western Australia Guardianship and Administration Act 1990
outline how these objects are to be implemented. For example, section 4(2) of the
Guardianship and Administration Act 1986 (Vic) states that:
2) It is the intention of Parliament that the provisions of this Act be
interpreted and that every function, power, authority, discretion,
jurisdiction and duty conferred or imposed by this Act is to be exercised or
performed so that-
a) the means which is the least restrictive of a person’s freedom of deci-
sion and action as is possible in the circumstances is adopted; and
b) the best interests of a person with a disability are promoted; and
c) the wishes of a person with a disability are wherever possible given
effect to.
Almost all of the statutes contain a set of principles for the administration of the
framework. These principles accord with the ‘best interests’ definition above, as they
usually have similar provision to those found in section 5 of the Guardianship and
Administration Act 1993 (SA):
Where a guardian appointed under this Act, an administrator, the Public
Advocate, the Board or any court or other person, body or authority makes
any decision or order in relation to a person or a person’s estate pursuant to
this Act or pursuant to powers conferred by or under this Act —
a) consideration (and this will be the paramount consideration) must be
given to what would, in the opinion of the decision maker, be the
wishes of the person in the matter if he or she were not mentally
incapacitated, but only so far as there is reasonably ascertainable
evidence on which to base such an opinion; and
b) the present wishes of the person should, unless it is not possible or
reasonably practicable to do so, be sought in respect of the matter and
consideration must be given to those wishes; and
c) consideration must, in the case of the making or affirming of a
guardianship or administration order, be given to the adequacy of
156
existing informal arrangements for the care of the person or the

management of his or her financial affairs and to the desirability of not
disturbing those arrangements; and
d) the decision or order made must be the one that is the least restrictive
of the person’s rights and personal autonomy as is consistent with his
or her proper care and protection.
In relation to consent to medical or dental treatment, the concept of treatment
itself is broken up into a range of different degrees of seriousness of consequences,
and thus the people who are able to give consent on behalf of the individual also
vary. For example, the Guardianship and Administration Act 2000 (Qld) identifies
the categories of urgent healthcare (s 63), life-sustaining measures in an acute
emergency (s 63A), minor, uncontroversial healthcare (s 64), and special healthcare
(s 68).
Provision is made under section 63 that healthcare, other than special healthcare,
may be carried out without consent if the adult’s health provider reasonably consid-
ers that the patient has impaired capacity for the health matter concerned; and
either that the healthcare should be carried out urgently to address an imminent
risk to the adult’s life or health; or that the healthcare should be carried out urgently
to prevent significant pain or distress to the adult and it is not reasonably practicable
to get consent from a person who may give it. However, section 63A also provides
for a life-sustaining measure to be withdrawn or withheld without consent if the
adult’s health provider reasonably considers that the adult has impaired capacity for
the health matter concerned; and the commencement or continuation of the
measure for the adult would be inconsistent with good medical practice; and
consistent with good medical practice, the decision to withhold or withdraw the
measure must be taken immediately. Neither of these provisions applies if there is
an advance directive to the contrary. Artificial nutrition and hydration is defined as
a life-sustaining measure for the purpose of Schedule 2, section 5A of the Act, but
not within this section, thereby limiting the range of decisions the healthcare pro-
vider can make without reference to the tribunal.
Provision is further made that ‘minor, uncontroversial healthcare’ may also be
given without consent if the healthcare provider considers that the person lacks
capacity and reasonably considers that the healthcare is necessary to promote the
adult’s health and wellbeing; is of the type that will best promote the adult’s health
and wellbeing; and is minor and uncontroversial. Examples given in section 64
include administration of a tetanus injection and an antibiotic. Provisions through-
out the statute prevent patients being treated if they are known to object to the
treatment, unless that treatment would cause minimal distress and the person has
limited understanding of what the treatment would entail (s 67). However, the
objection would still prevail in the event of tissue donation or engagement in
research. The consent of a tribunal is required for special healthcare, which includes
such interventions as sterilisation, but does not include such treatments as electro-
convulsive therapy or psychosurgery under section 68. Most statutes make specific
provision for consent to sterilisation. Other special treatments mentioned in other
statutes include termination of pregnancy, treatment with particular groups of
157
medications, tissue donation and participation in medical research. These treat-

ments are not necessarily forbidden, it is just that great care is taken to be transpar-
ent and rigorous in making decisions to give consent to them.
Usually there is a hierarchy of people who can give substitute consent. Several
statutes use the term ‘person responsible’ to describe who might give consent. For
example, under section 33A(4) of the Guardianship Act 1987 (NSW) the ‘person
responsible for a person other than a child or a person in the care of the Director-
General’ is defined in a hierarchy of descending order as follows:
a) the person’s guardian, if any, but only if the order or instrument appointing
the guardian provides for the guardian to exercise the function of giving
consent to the carrying out of medical or dental treatment on the person,
b) the spouse of the person, if any, if:
i) the relationship between the person and the spouse is close and
continuing, and
ii) the spouse is not a person under guardianship,
c) a person who has the care of the person,
d) a close friend or relative of the person.
If a formal guardian is appointed, their powers are usually quite specific and often
time-limited, so that there is little risk of such a person stepping over their boundar-
ies in relation to the decisions they are appointed to make on the person’s behalf.
Over and above a formal guardian being appointed, where there is no one to be
either a person responsible or a formal guardian (also known as an ‘enduring guard-
ian’), then a Public Guardian may be appointed to give consent and make decisions
on behalf of the person. Where any ‘special’ treatment or healthcare (also referred
to as ‘prescribed treatment’) is required, this may need to be decided by a Guardian-
ship Tribunal or even in some cases by the Supreme Court in the exercise of its
parens patriae jurisdiction. Although most statutes differ slightly in the
determination of special treatment and the consent requirements, there is a sig
nificant degree of similarity in the intent of the statutes in relation to these
hierarchies.
Where there is less certainty is in relation to the withdrawal of life-sustaining
treatment. Some jurisdictions have provisions within the statutes for consent to
withholding or withdrawing life-sustaining treatment. For example, the Guardian-
ship and Administration Act 2000 (Qld) makes specific provision for the withholding
or withdrawal of life-sustaining treatment, under section 63A, providing the adult’s
health provider reasonably considers that the commencement or continuation of
the measure for the adult would be inconsistent with good medical practice; and
consistent with good medical practice, the decision to withhold or withdraw the
measure must be taken immediately. A decision to withhold artificial nutrition and
hydration was allowed by the Queensland Guardianship and Administration Tri-
bunal in 2006.43
HG was a 58-year-old former merchant seaman who developed both Wernicke’s
encephalopathy and Korsakoff’s psychosis as a result of a long history of excessive
alcohol consumption. Because he was unable to make financial decisions, in June
158
2004 the tribunal appointed the Public Trustee of Queensland as HG’s administrator
for financial matters and the Adult Guardian as a guardian to make decisions in rela-
tion to his future accommodation. On 21 January 2006, HG had a brain-stem stroke
which left him unable to swallow and completely paralysed except for the ability to
move his eyes up and down and blink. HG was taken to the Acute Stroke Unit at a
Brisbane hospital where it was concluded that his pre-stroke cognition was likely to
have remained intact but he had no ability to communicate except possibly by blink-
ing. This condition is known as ‘locked-in-syndrome’ (LIS). A decision was made to
withdraw life support but former carers from his group home sought a review of the
decision. After an extensive review of the tribunal’s jurisdiction to hear the case and
evidence from three medical experts, and having considered the general principles
and healthcare principles that were relevant to this case, the tribunal determined that
it should consent to the withdrawal of artificial hydration currently being provided
to HG, and the withholding of artificial nutrition.
This type of reasoning has recently been supported in New South Wales following
a rather uncertain start in an earlier decision.44 The case of Re BAH 45 concerned a
56-year-old woman with a mild intellectual disability who had a terminal illness
for which the treating team wanted to introduce an end-of-life care regime that
included (inter alia) a not-for-resuscitation order. President Robinson of the Guard-
ianship Tribunal of New South Wales supported the concept of consenting to limit
the treatment.
The weight of case law supports the view that, in certain circumstances, limiting
treatment can support the welfare and best interests of a patient. The tribunal con-
siders that limiting treatment can also promote and maintain a person’s health and
wellbeing. The nature and circumstances of the particular individual’s state of health
must be considered. Giving treatment which is futile does not promote a patient’s
health and wellbeing, particularly when that treatment is also burdensome and
intrusive. At the end of life, a decision which promotes health and wellbeing may
be a decision which allows a person to die in comfort and with dignity.
The tribunal considers that the circumstances in which limiting treatment can
promote and maintain a person’s health and wellbeing may well be exceptional, but
can exist at the end of life. As Morris J said in Public Advocate v RCS (Guardianship)
[2004] VCAT 1880:
The contrary argument is predicated upon the proposition that it is always
in a person’s best interests to live. I cannot accept this. Death is an
inevitable consequence of life on this earth. When death stares one in the
face or when treatment is futile, the person concerned or the trusted agent
or guardian may conclude that it is in the best interests of the person to
refuse medical treatment and to allow the person to pass away.46
An involuntary patient deemed to be mentally ill in accordance with relevant
mental health legislation in each state or territory
There are essentially two types of patients who are admitted to psychiatric hos-
pitals: voluntary and involuntary patients. The voluntary patient presents himself
or herself for treatment and professional care and retains the right to give and with-
hold consent to treatment and leave hospital at any time. The involuntary patient
159
is admitted for treatment against his or her wishes and, in some circumstances as
set out in the legislation, has no legal capacity to give or withhold consent to treat-
ment. There are legislative safeguards in the Acts to protect the patient’s interests,
while at the same time permitting hospital authorities to carry out therapeutic
procedures on such patients if considered necessary. This matter is discussed at
length in Chapter 11.
Emergency situations
No consent is required where the patient is unconscious or seriously ill and the
situation calls for immediate intervention in order to save a person’s life. The over-
riding duty of care which arises in such emergency situations negates the need for
consent on the grounds of the doctrine of emergency or necessity. However, the
treatment required must be an urgent treatment required to save life or prevent
severe and long-lasting deterioration to the patient. Kerridge et al. state that ‘tort
law appears to be more settled and clearly requires threat of imminent harm: London
Borough of Southwark v Williams [1971] Ch 734’.47
Blood transfusions and other treatments

Problems arise where the adult patient is conscious and refusing treatment. The
situation that occasionally occurs is where a patient refuses blood transfusions
on the grounds of religious beliefs. At common law, an adult has the right to
refuse such treatment and hospitals have no authority to override that decision.
An example of that situation is the case referred to earlier in this chapter of
the Jehovah’s Witness patient (Mrs Malette) who sued the treating doctor for
battery on the grounds that he had overridden her express objections in the
form of a printed signed card carried in her purse which stated that, because of
her religious convictions, she did not want any blood transfusions.48 In upholding
Mrs Malette’s claim for damages for battery the Appeal Court stated, in part, as
follows:
While the law may disregard the absence of consent in limited emergency
circumstances, it otherwise supports the right of competent adults to make
decisions concerning their own healthcare by imposing civil liability on
those who perform medical treatment without consent.
… To transfuse a Jehovah’s Witness in the face of her explicit instructions to
the contrary would, in my opinion, violate her right to control her own
body and show disrespect for the religious values by which she has chosen
to live her life.49
And further:
… the state may in certain cases require that citizens submit to medical
procedures in order to eliminate a health threat to the community or it may
prohibit citizens from engaging in activities which are inherently dangerous
to their lives. But this interest does not prevent a competent adult from
refusing life preserving medical treatment in general or blood transfusions in
particular.50
160
The only way a hospital could seek to override an adult patient’s wishes in such
a matter would be to seek the intervention of either the Supreme Court of the state
or territory or to seek advice from the Guardianship Board as to whether consent
to a blood transfusion may be granted. There have been two Australian cases
determined by Guardianship Boards that, on the interventions of their families,
overturned the express wishes of the patients not to receive blood transfusions.51 In
the 1998 Victorian case of Qumsieh (or Q’s case) the decision was made very nar-
rowly upon the specific facts of the case and does not set out clear legal principles.
The decision in Q’s case has been criticised as it seems to disregard some of the
provisions of the Victorian Medical Treatment Act 1988. The second decision, made
in 2004 in New South Wales, In AB, was also unusual, based on the family’s desire
for the man to receive a transfusion in disregard of his express written wish not to
do so.52
Treatment of a spouse
Despite a belief still held in many quarters, there is no legal provision requiring
hospitals to obtain the consent of the remaining spouse where a husband or wife
undergoes treatment or an operation of any sort. The type of operation which
generally attracted this requirement in hospitals was when the wife was having a
tubal ligation, laparoscopic sterilisation or termination of pregnancy. Equally, where
the husband was admitted for a vasectomy, the same requirement applied. It is to
be hoped that when a husband or wife chooses to have such an operation, they will
discuss it between themselves as an accepted part of the marital relationship.
However, should a husband or wife refuse or fail to discuss such or any medical
treatment with their spouse, he or she is quite able to give valid consent to such
treatment. The only situations where the consent of a spouse, relative or guardian
may be legally required are provided for in legislation; for example:
• guardianship or mental health legislation, which allows for an appointed
guardian to consent to medical treatment where the person lacks legal capacity;
• human tissue legislation (the Human Tissue Acts) of all states and territories,
which provides that the ‘nearest available next of kin’ or similar phrase is able
to consent to the removal of organs from a deceased person if the deceased
person’s wishes are unknown or unable to be ascertained;
• in-vitro fertilisation programs provided for by legislation require the consent of
both husband and wife to participate in the program; and
• adoption legislation, which provides that the consent of both partners to a
marriage must agree to adopt a child.
STATUTORY PROVISIONS
Some states and territories and the Commonwealth have imposed certain statutory
provisions which enable certain authorities to treat adults without their consent. As
an example, section 47EAA of the Road Traffic Act 1961 (SA) provides for the taking
of blood and oral fluids for analysis from a person who is involved in a motor vehicle
accident. If that person is admitted to hospital as a result of the motor vehicle
accident, there is an obligation on the treating doctor or the doctor’s agent (gener-
ally a nurse) to take a blood sample without the patient’s consent.
161
TEMPORARY FACTORS WHICH MIGHT IMPAIR CAPACITY

Although the normal assumption is that adults are considered to have capacity to
give consent except in unusual circumstances, in a number of cases, the courts have
decided that a person’s capacity was temporarily impaired. In Re T, a woman who
was a Jehovah’s Witness was given a blood transfusion whilst ventilated following a
postpartum haemorrhage despite her express wishes to the contrary.53 However, she
had been given incorrect information about the alternative treatments available. It
was held that it would not be unlawful to give her a blood transfusion because her
decision to refuse one had been based on incorrect information. In the course of
his judgment, Lord Donaldson, whilst making clear that a person of capacity had
the right to refuse treatment, described obiter dictum a number of other possible
scenarios where a temporary loss of capacity might occur, as follows:
However, the presumption of capacity to decide, which stems from the fact
that the patient is an adult, is rebuttable. An adult patient may be deprived
of his capacity to decide either by long-term mental incapacity or retarded
development or by temporary factors such as unconsciousness or confusion
or the effects of fatigue, shock, pain or drugs.54
Findings of temporary loss of capacity have recently been made in two cases
where pregnant women were ‘needle phobic’ and refused to have the anaesthetic
needle for caesarean section.55 In Re L, Kirkwood J found that the patient, who was
in obstructed labour, had an extreme needle phobia which:
… amounted to an involuntary compulsion that disabled L from weighing
treatment information in the balance to make a choice. Indeed it was an
affliction of a psychological nature that compelled L against medical advice
with such force that her own life would be in serious peril.56
Clearly these situations would not be the norm, but it is worth noting that there
have been situations where the courts have found that it was acceptable to admin-
ister treatment against the patient’s expressed wishes because it was believed that
they had temporarily lost the capacity to make a rational decision.
MINORS AND CONSENT

Traditionally, the legal definition of a minor was a person below 18 years of age,
and the term ‘minor’ was used in legislation dealing with legal matters relating to
people of that age.57 Where legislation was designed for more protective purposes
the term ‘children’ has tended to be used.58 More recently a distinction has
been drawn between children and young people. The Children and Young People Act
1999 (ACT) defines a ‘child’ as a person under the age of 12 (s 7) and a ‘young
person’ as a person aged 12 or older but not yet an adult (s 8). In New South
Wales, under section 3 of the Children and Young Persons (Care and Protection)
Act 1998, a ‘child’ is defined (except for the purposes of employment) as a person
under 16 years of age and a ‘young person’ as someone aged 16 or over but under
18. However, not all legislation makes the distinction even when it uses both terms.
In the Victorian Children, Youth and Families Act 2005 (s 3) the term ‘child’ is
defined as:
162
a) in the case of a person who is alleged to have committed an offence, a

person who at the time of the alleged commission of the offence was
under the age of 18 years but of or above the age of 10 years but does
not include any person who is of or above the age of 19 years when a
proceeding for the offence is commenced in the Court; and
…
b) in any other case, a person who is under the age of 17 years or, if a protection
order, a child protection order within the meaning of Schedule 1 or an
interim order within the meaning of that Schedule continues in force in
respect of him or her, a person who is under the age of 18 years.
The term ‘young person’ is not defined.
The New South Wales Law Reform Commission (NSWLRC), in its Report 119,
Young People and Consent to Health Care,59 defines a young person as one under the
age of 18 years, but then goes on to recommend that the following principles should
be incorporated into future legislation:
• Young people should be informed about matters relating to their health care,
to the extent and in a manner appropriate to their age and maturity, and
should be given the opportunity to express their views freely about these
matters, and their views should be given due weight in accordance with their
age and maturity.
• The developing autonomy of the young person should be acknowledged.
• Respect should be given to the responsibilities and role of parents in the health
care of their child or, where applicable, the members of the extended family or
persons legally responsible for the young person, in a manner consistent with
the evolving capacities of the young person.
• Account should be taken of the culture, disability, language, religion and
sexuality of the young person and, if relevant, those with parental
responsibility for the young person.
• Access by young people to appropriate health care should be promoted.
• The best interests of the young person should be the primary consideration.60
The current situation with the common law is that a child or young person is legally
competent to give a valid consent to treatment if the child is capable of understanding
the nature and consequences of the proposed treatment. This was confirmed in the
High Court of Australia in a case usually referred to as Marion’s case, where the ques-
tion of whether the parents of a 14-year-old girl with severe intellectual and physical
handicap could give consent for her to be sterilised, or whether this consent could
only be given by the court.61 In determining whether or not minors under 16 years
could consent to treatment at all, the majority judgment was that:
A minor is … capable of giving informed consent when he or she achieves a
sufficient understanding and intelligence to enable him or her to understand
fully what is proposed.62
163
The High Court recognised that, although this concept of parental power dimin-
ishing as the authority of the minor to meet the above test increases, it ‘lack[s]
the certainty of a fixed age rule, [it] accords with experience and with psychology’.
They went on to say that this ‘should be followed in this country as part of the
common law’.63 Note that the level of understanding for minors at common law is
therefore currently higher than that for adults. Adults are only required to under-
stand ‘in broad terms’, whereas minors are required to ‘understand fully’ what is
proposed.
In some jurisdictions this has been incorporated into statute. For example, section
12 of the South Australian Consent to Medical Treatment and Palliative Care Act
1995 makes provision for a medical practitioner to administer medical treatment
to a child if either:
a) the parent or guardian consents; or
b) the child consents and —
i) the medical practitioner who is to administer the treatment is of the
opinion that the child is capable of understanding the nature, conse-
quences and risks of the treatment and that the treatment is in the best
interest of the child’s health and well-being; and
ii) that opinion is supported by the written opinion of at least one other
medical practitioner who personally examines the child before the
treatment is commenced. [emphasis added]
Although the common law does not apply a specific age cut-off point, some
statutes still adopt 14 years as an accepted age for such purposes. For example, in
New South Wales, the age of 14 has been formally accepted by its insertion into
section 49(2) of the Minors (Property and Contracts) Act 1970, as far as a child’s
ability to consent to medical and dental treatment is concerned. Similarly, in South
Australia, section 6 of the Consent to Medical Treatment and Palliative Care Act 1995
permits a young person of 16 years of age or over to consent to medical or dental
treatment. However, government policies are beginning to apply an amalgam of the
common law and statute law to assist healthcare professionals in the difficult task
of determining how to manage the ability of minors to consent to treatment. For
example, section 25.2 of the New South Wales Policy Directive PD2005_406,
although beginning by stating that ‘if the patient is under the age of 14 years, the
consent of the parent or guardian is necessary’, goes on to say that:
Generally, the age at which a young person is sufficiently mature to consent
independently to medical treatment depends not only on their age but also
on the seriousness of the treatment in question relative to their level of
maturity. The health practitioner must decide on a case-by-case basis
whether the young person has sufficient understanding and intelligence to
enable him or her to fully understand what is proposed.64
Nowadays a healthcare practitioner has access to resources when there is conflict
between parents and young people about consent to medical treatment. The
NSWLRC suggests that:
164
Although the issue has not been tested in NSW, a prudent doctor would
be unlikely to continue to treat a child or young person when he or she
became aware that the medical treatment was against the wishes of one of
the parents.65
However, the NSWLRC does go on to suggest that in New South Wales both
the Family Court and the Supreme Court have jurisdiction over aspects of health-
care for children, and the Director General of the Department of Community
Services (howsoever named) can also be called upon for assistance.66 An example of
where the wishes of a parent or guardian in relation to children have been over-
turned by the courts occurred in New South Wales in K v Minister for Youth and
Community Services.67 The relevant facts are set out below.
A 15-and-a-half-year-old ward of the state became pregnant and, on medical
advice, sought a termination of pregnancy. As the child’s guardian, the then Minister
for Youth and Community Services refused to give his consent to the procedure.
The girl, with the aid of a pro-abortion lobby group, challenged the minister’s deci-
sion to refuse consent. The judge who heard the matter overturned the minister’s
decision and authorised the termination on the basis that medical evidence showed
it was in the girl’s best interests and it was being conducted within the state’s legal
requirements for a termination of pregnancy.
Judicial approval is usually required in relation to what are referred to as special
procedures or treatments which include research involvement, procedures such as
sterilisation, termination of pregnancy and medication such as hormonal treatment
for long-term contraception, psychotropic medications in out-of-home situations
and long-term administration of drugs of addiction. For example, section 175 of
the Children and Young Persons (Care and Protection) Act 1998 (NSW) sets the
penalty for carrying out ‘special medical treatment’ otherwise than in accordance
with the section as seven years’ imprisonment.
Under the section a medical practitioner may only carry out special medical
treatment on a child if either they are of the opinion that it is necessary, as a matter
of urgency, to save the child’s life or to prevent serious damage to the child’s health,
or if the Guardianship Tribunal consents to the carrying out of the treatment. The
Guardianship Tribunal can only give consent to the carrying out of special medical
treatment on a child if it is satisfied that it is necessary to carry out the treatment
on the child in order to save the child’s life or to prevent serious damage to the
child’s psychological or physical health.
In section 175 ‘medical treatment’ includes:
a) any medical procedure, operation or examination, and
b) any treatment, procedure, operation or examination that is declared by
the regulations to be medical treatment for the purposes of this section.
and ‘special medical treatment’ means:
a) any medical treatment that is intended, or is reasonably likely, to have the
effect of rendering permanently infertile the person on whom it is carried
out, not being medical treatment:
i) that is intended to remediate a life-threatening condition, and
165
ii) from which permanent infertility, or the likelihood of permanent

infertility, is an unwanted consequence, or
b) any medical treatment for the purpose of contraception or menstrual
regulation declared by the regulations to be a special medical treatment
for the purposes of this section, or
c) any medical treatment in the nature of a vasectomy or tubal occlusion, or
d) any other medical treatment that is declared by the regulations to be
special medical treatment for the purposes of this section.
Many young people in the 14 to 18 years age group seek medical treatment that
they do not wish their parents to know about. In such circumstances, a young
person is able to give a valid consent to treatment, subject to the legislative and
common-law principles already stated. The question of confidentiality in these situ-
ations is quite complex, and does create significant dilemmas for healthcare profes-
sionals. However, McMahon makes the point that: ‘It is generally conceded that
minors who are competent to consent to healthcare should also be afforded confi-
dentiality in relation to that care’.68
As with adults, there are certain situations where consent is not required or,
specifically with children, where parental refusal to consent to treatment for a child
can be overridden or is not required. These situations are examined below.
Emergency situations
No parental consent is required where the child is unconscious or seriously ill
and the situation calls for immediate intervention in order to save the child’s life.
The overriding duty of care that arises in such emergency situations negates the
need for parental consent. For example, if a child with severe injuries were brought
into casualty following a motor vehicle accident, the obvious duty that would arise
— to treat that child as quickly as possible — would operate as a defence to a sug-
gestion of battery.
Statutory provisions
The major statutory provisions relate to the following:
The administration of blood transfusions without parental consent
Each state and territory makes such provision in differently named statutes but
the commonality of the provisions allows a legally qualified medical practitioner to
give a blood transfusion to a child without the consent of the parent or guardian,
if it can be shown that a blood transfusion is a reasonable and proper form of treat-
ment and it is necessary to save the child’s life. Section 21 of the Human Tissue and
Transplant Act 1982 (WA) provides a good example of the types of situations placed
upon medical practitioners when wishing to administer a blood transfusion to a
child in the absence of parental consent.
1) A medical practitioner may perform a blood transfusion upon a child
without the consent of any person who is legally entitled to authorise the
blood transfusion if —
a) such person —
166
i) fails or refuses to so authorise the blood transfusion when requested

to do so; or
ii) cannot be found after such search and inquiry as is reasonably
practicable in the circumstances of the case;
and
b) the medical practitioner and another medical practitioner agree —
i) as to the condition from which the child is suffering;
ii) that the blood transfusion is a reasonable and proper treatment for
that condition; and
iii) that without a blood transfusion the child is likely to die;
and
c) the medical practitioner who performs the blood transfusion on the
child —
i) has had previous experience in performing blood transfusions; and
ii) has, before commencing the transfusion, assured himself that the
blood to be transfused is suitable for the child.
The individual state and territory provisions are shown in Table 4.2.
Table 4.2
Statutory provisions concerning situations in which parental consent to
blood transfusions is not required, or parental refusal to give consent may
be overridden
Australian Capital Territory Transplantation and Anatomy Act 1978 section 23
New South Wales Children and Young Persons (Care and Protection) Act 1998
section 174
Northern Territory Emergency Medical Operations Act 1973 section 3
Queensland Transplantation and Anatomy Act 1979 section 20
South Australia Consent to Medical Treatment and Palliative Care Act 1995
section 13(5)
Tasmania Human Tissue Act 1985 section 21
Victoria Human Tissue Act 1982 section 24
Western Australia Human Tissue and Transplant Act 1982 section 21
Children who are placed under the care of the state

Consent for treatment of children who are the subject of care and protection
orders has to be given by the minister or secretary of the relevant government
department empowered with the guardianship of such children. In most states and
territories, that is the Minister for Youth and Community Services. There are a range
of names for the relevant statutes; for example, in Western Australia it is the Children
and Community Services Act 2004, and in Tasmania, the Children, Young Persons and
Their Families Act 1997.
167
Reporting, examination and treatment of children at risk without

parental consent
It has now been recognised that there are occasions when it is necessary, for the
protection of the child, to remove a child from the parents without their consent
and to detain a child in hospital for examination and treatment without parental
consent. Such steps are generally required when instances of child neglect or child
abuse become known. All states and territories have now made specific provision
to deal with these issues, while at the same time making sure that appropriate pro-
tection against defamation or other civil actions is afforded to those persons required
to report such incidents to the relevant authorities. These statutory provisions are
shown in Table 4.3.
The precise wording of the statutory requirements varies, but, as is usual, the
major provisions are the same and have been summarised as follows:
• A child for the purposes of these provisions is a person up to the age of 18 years.
• Child neglect or abuse embraces both psychological and physical harm
(including sexual abuse).
• There is a duty for healthcare professionals to notify if child neglect or abuse is
reasonably suspected.
• The persons who have an absolute duty to notify are medical practitioners as
well as a wide range of healthcare and welfare professionals, including nurses
and midwives.
• As well as the absolute duty to notify imposed on certain categories of people,
there is also the provision that any other person ‘may’ notify if they reasonably
suspect child abuse or neglect.
• On receipt of the notification, the relevant government department is then
required to investigate the matter.
• As long as it is made in good faith, the notification and any accompanying
report are protected from any civil action, such as defamation.
Table 4.3
Statutory provision for removal of a child and detaining a child in hospital
without parental consent
Australian Capital Territory Children and Young People Act 2008
New South Wales Children and Young Persons (Care and Protection) Act 1998
Northern Territory Care and Protection of Children Act 2007
Queensland Child Protection Act 1999
South Australia Children’s Protection Act 1993
Tasmania Children, Young Persons and Their Families Act 1997
Victoria Children Youth and Families Act 2005
Child Wellbeing and Safety Act 2005
Western Australia Children and Community Services Act 2004
168
• If a child is brought to a hospital as a result of suspected abuse or neglect, a

medical practitioner may order that the child be detained in hospital without
parental consent. The period of time that a child may be detained in this way
varies between state and territory. During the time a child is detained, medical
treatment or tests, as deemed necessary, may be carried out without parental
consent.
The right to refuse medical treatment

In addition to the need to obtain a patient’s consent to treatment, there is also the
related right of a person to withhold their consent to treatment. This has been a
somewhat controversial topic over the years, both at law and in practice, as health-
care professionals have taken some time to accommodate and acknowledge it, since
it can clash with their professional culture of intervention to save life. When this
professional culture is coupled with the overriding legal obligation, particularly in
a hospital environment, of doing all that can be done to save life and preserve health,
it is perhaps understandable why some healthcare professionals have in the past
found refusal of consent to treatment so difficult.
Concerns about being able to determine the course of treatment, particularly in
the face of medical futility at the end of life, have arisen due to the increasing ability
to extend life. The challenge has been to decide whether, just because it was possible
to do more to keep a person alive, whether it was appropriate to do so, if the burden
of the proposed therapy outweighed the benefits. As treatment and cure has deve
loped throughout the twentieth century, healthcare practitioners have found it
increasingly difficult to discontinue life-prolonging treatment and, therefore, have
frequently provided aggressive therapy until the point of death, in some instances
depriving the patient of the opportunity for appropriate palliative care. The most
recent report from the Dartmouth Atlas of Health Care69 in the United States has
this to say about treatment at end of life:
The intensity of care in the last six months of life is an indicator of the
propensity to use life-saving technology. The question of whether more
medical intervention is better must be framed in terms of the potential gain
in life expectancy for populations living in regions with greater intensity of
intervention. Our research has provided evidence that populations living in
regions with lower intensity of care in the last six months of life did not
have higher mortality rates than those living in regions with higher care
intensity.
More than 80% of patients say that they wish to avoid hospitalization and
intensive care during the terminal phase of illness, but those wishes are
often overridden by other factors. If more intense intervention does not
improve life expectancy, and if most patients prefer less care when more
intensive care is likely to be futile, the fundamental question is whether the
quality of care in regions with fewer resources and more conservative
practice styles is better than in regions where more aggressive treatment is
the norm.70
169
Start a new report

At the same time, some activist groups, such as those advocating for and opposing
euthanasia, have brought the debate about the potential for and problems with
end-of-life care into the mainstream, even if the public does not necessarily agree
with the goals of either group.71
The right to withhold consent to treatment, as much as the right to give consent
to treatment, is a fundamental common-law right of all patients of full legal capac-
ity. In essence, therefore, such a right requires no legislative prescription to sustain
it. In spite of that, the need for legislation to enshrine the right to withhold consent
to treatment, particularly in cases of terminal illness, has been perceived as necessary
in some states and territories of Australia. Others have simply developed policy to
assist in clarification and implementation of the existing common law. The major
argument in support of the need for legislation is to ensure protection from any
potential civil and criminal liability on the part of a healthcare practitioner who
acts in good faith and in accordance with the expressed wishes of a fully informed,
competent patient who refuses medical treatment.
To date the majority of legislation passed by some of the states and territories
has been merely a statutory reflection of the common-law position where a person
can refuse medical treatment. This type of legislation enables competent adults in
certain specified situations to direct that medical treatment be withdrawn or with-
held. People may feel that legislative status perhaps offers clearer protection to those
with terminal or incurable illnesses, or healthcare professionals who treat them, from
potential criminal or civil liability, but in reality, a policy document provides similar
clarity of the current legal situation. However, one of the important aspects of
codifying the common law is that it has the potential to make mainstream some
relatively new practices, such as the development and acknowledgment of advance
directives.
Advance directives, advance care planning and proxy decision-making

A critical aspect of patients’ rights to refuse treatment is whether that right can be
assured if they lack capacity. The development of advance directives,72 or ‘living
wills’ as they are sometimes known, is one way that people can ensure that their
wishes to refuse treatment are known even if they are unable to communicate at
the time that the treatment they wish to refuse is under consideration. These
advance directives are considered to be of particular importance for patients with
dementia, as the prognosis of incapacity is clear from the outset of the disease, and
it is thus possible actively to ascertain the patient’s wishes about an almost certain
future scenario.73 Currently there is a new emphasis on looking at planning ahead,
or advance care planning, as much more of an iterative conversation that all adults
need to undertake to ensure they are able to feel comfortable about their financial,
physical and mental wellbeing into the future. This is often described as ‘Advance
Care Planning’ or ‘Planning Ahead’.74
The level of proof required to ascertain what the patient’s wishes would be in
relation to their treatment was explained in the United States Supreme Court in
the case of Cruzan v Director, Missouri Department of Health,75 which identified the
requirement for ‘clear and convincing evidence’. Advance directives are one way of
170
obtaining ‘clear and convincing evidence’ of a patient’s wishes about future treat-
ment. An ‘Advance Care Directive’ is defined by the Advance Care Directive Asso-
ciation Inc, a group of healthcare professionals and experts who provide advice to
the public on advance care planning, as:
… a written statement regarding someone’s wishes for their future health
care. An Advance Care Directive can be made now by anyone who has the
capacity to do so. An Advance Care Directive is only used if, at some point
in the future, the person becomes incapable of making health care decisions
for themselves (due to illness or injury).76
A possible problem of not having a statutory framework for advance directives
may be that many issues, such as duration of effect, liability for healthcare profes-
sionals, questions of what may or may not be excluded, management of relatives,
and drafting provisions could still be left as both discretionary and optional issues.
The only place for legal resolution would then be through the common law, which
means that some parties will have been sufficiently dissatisfied with the clinical
process of decision-making that they needed to seek resolution from the courts.
Concerns about misinterpretation77 and applicability to future events78 are acknowl-
edged as being problems with advance directives. However, it seems apparent that
the value of clear and convincing evidence of pre-determined wishes in relation to
treatment outweighs any disadvantages.
Australia has legislated for advance directives in some states and territories but
not others, and the types of medical treatment that can be refused in advance varies
from state to state and territory. However, Victoria, which has the most permissive
legislation in relation to what treatments might be refused and in what circum-
stances, reports that because of the Medical Treatment Act 1988 (Vic) there is very
little common law. The Senior Guardian of the Office of the Public Advocate
believes this is because most end-of-life decisions are resolved amicably within the
policy and legal framework developed by the Act.79 However, concerns are still being
expressed about the relative ongoing disregard for advance directives in some situ-
ations,80 so it seems there is still work to be done.
The different approaches to refusal of treatment taken by the states and territories
are set out in Table 4.4.
The right to restrain or detain patients without their consent

The right of a hospital or nursing home to restrain patients against their wishes is
of genuine concern to nursing staff who often have to deal with violent, aggressive
or dementing patients or residents, or patients whose particular medical condition
makes them physically or mentally temporarily unstable and very threatening. Also,
some patients who are ill and require continuing care demand to be discharged.
Obviously in most circumstances all competent adults have a legal right not to
be restrained or detained — doing so is the third in the trio of trespasses to the
person mentioned at the beginning of this chapter. Having said that, the legal right
of hospitals and nursing homes to restrain patients or residents without their
consent and the right of hospitals to detain patients against their wishes clearly does
exist in particular circumstances. Before specific consideration of those particular
171
Table 4.4
Different approaches to refusal of treatment
State or Provision made Key features
territory
ACT Medical Treatment Long title: An Act to provide for directions about the
(Health Directions) Act withholding or withdrawal of medical treatment, and for
2006 related purposes
NSW81 Advance Planning for The NSW Health Advance Planning for Quality Care at the
Quality Care at the End End of Life: Strategic and Implementation Framework (the
of Life: Strategic and Framework) provides direction for NSW Health in
Implementation developing a system-wide, coordinated, continuous quality
Framework (2011) approach to advance care planning, including for end of life
NT Natural Death Act 1988 Long title: An Act to provide for, and give legal effect to,
directions against artificial prolongation of the dying
process
Qld Powers of Attorney Act By an advance health directive, an adult principal may —
1998 section 35(1) (a) give directions, about health matters and special health
matters, for his or her future health care; and
(b) give information about his or her directions; and
(c) appoint 1 or more persons who are eligible attorneys to
exercise power for a health matter for the principal in
the event the directions prove inadequate; and
Editor’s note —
Note this does not include a special health matter.
(d) provide terms or information about exercising the
power.
SA Consent to Medical Long title: An Act to deal with consent to medical
Treatment and treatment; to regulate medical practice so far as it affects
Palliative Care Act 1995 the care of people who are dying; and for other purposes.
Section 3 — Objects
The objects of this Act are:
…
(b) to provide for medical powers of attorney under which
those who desire to do so may appoint agents to make
decisions about their medical treatment when they are
unable to make such decisions for themselves; and
(c) to allow for the provision of palliative care, in
accordance with proper standards, to people who are
dying and to protect them from medical treatment that
is intrusive, burdensome and futile.
Tas • Guardianship and Fact Sheet: An Advance Care Plan is a written statement of
Administration Act your wishes regarding your future medical treatment that is
1995 signed and dated. It is sometimes called a ‘statement of
• (Part 5: Appointment wishes’, ‘advance directive’ or ‘living will’. It helps those
of enduring involved in your care to know what you want and makes it
guardian) easier to convey these wishes to others. Unless it is
• Website of DHHS registered as part of the Enduring Guardianship process an
Advance Care Advance Care Plan does not have any legal standing but it
Planning Fact Sheet82 does serve to represent your wishes for care.
172
Table 4.4
Different approaches to refusal of treatment—Cont’d
State or Provision made Key features
territory
Vic Medical Treatment Act Section 1 — Purpose
1988 The purposes of this Act are-
(a) to clarify the law relating to the right of patients to
refuse medical treatment;
(b) to establish a procedure for clearly indicating a decision
to refuse medical treatment;
(c) to enable an agent to make decisions about medical
treatment on behalf of an incompetent person.
WA • Acts Amendment Act The Acts Amendment (Consent to Medical Treatment) Act
(Consent to Medical 2008 amended the Guardianship and Administration Act
Treatment) Act 2008 1990, Civil Liability Act 2002 and the Criminal Code.
• Guardianship and Amendments to the Guardianship and Administration Act
Administration Act 1990 provide a legislative basis for Advance Health
1990 section 110P Directives. The Advance Health Directive form enables
• Civil Liability Act adults over 18 years of age with legal capacity to plan for
2002 future medical decisions if they are unable to make
decisions for themselves in the future.
circumstances is outlined, it is important to examine the legal context in which

these issues arise — and that requires consideration of the elements that constitute
the civil wrong of false imprisonment. False imprisonment, like assault and battery
and negligence, can be both a civil wrong and a crime. However, as far as nursing
staff are concerned, false imprisonment, also like assault and battery and negligence,
has greater significance as a civil wrong.
What is false imprisonment?

In essence, false imprisonment is the wrongful and intentional application of
restraint upon a person, restricting the person’s freedom to move from a particular
place or causing the person to be confined to a particular place against his or her
will. The ‘wrongful’ aspect of the restraint means that it is not, expressly or impliedly,
authorised by the law. By implication then there are a number of situations where
the law does permit people to be detained against their will — the most common
example being the detention of people in jail for criminal offences. Putting aside
this most obvious example, other situations relevant to nursing staff are dealt with
in this chapter.
How is false imprisonment committed?

Apart from the obvious steps of locking a person in a room without any means of
escape and against his or her will, it is quite possible to commit the civil wrong of
false imprisonment without ‘imprisonment’ of a person as the term is commonly
understood. In fact, neither physical contact nor anything resembling a prison is
necessary to constitute false imprisonment. For example, if a lecturer locked the
classroom door after the final lecture of the day and there was no other means of
173
escape for the students inside, that would clearly constitute false imprisonment,
even though the lecturer had not physically touched the students and they were not
being confined in a prison cell.
In addition, it is not necessary to confine a person physically to constitute false
imprisonment. It is sufficient if a person believes he or she is not free to go because
of some fear or apprehension that has been created in the person’s mind and which
acts as a constraint on the person’s will. For example, a male patient attends the
accident and emergency department of a hospital for emergency treatment for a
badly gashed arm. After the appropriate treatment, he is about to leave when the
ward clerk presents him with a bill for $50 for the treatment received. The patient
states he has got only $5 on him and will pay the bill at a later time. He is told
that he is not permitted to leave the hospital until the bill is paid and that he had
better make some arrangements to do so otherwise the police will be called. Believ-
ing this to be correct, the patient then spends a number of hours in the waiting
room trying to contact a friend or relative by phone to ask them to come to the
hospital with the required money. Some six hours after the patient was originally
ready to leave, a friend arrives with the money and the ward clerk says the patient
is now free to leave the hospital.
Although nobody has laid a hand on him or locked him in a room, the patient has
clearly been falsely imprisoned. A situation was created in which he genuinely
believed he was not free to go and that the police would be called if he should attempt
to do so. In fact, as far as paying accounts is concerned, no organisation, hospital or
department store can detain a person for failing to pay his or her debts. What they
can do is litigate through the appropriate court to recover the money owed.
RESTRAINT MUST BE INTENTIONAL AND COMPLETE

What this means is that the restraint must not only be intended but also be complete
in that there is no means of escape. Referring to the earlier example of the lecturer
locking the classroom door, if the classroom was on the ground floor and there were
plenty of open windows through which the students could climb, then the restraint
might have been intentional, but it would not have been complete. Alternatively,
if the classroom was on the tenth floor, then any number of open windows would
have been to no avail and the restraint would have been complete. At the same
time, if a person has the means to escape but does not know it, such a situation
would still be false imprisonment, unless it could be shown that a reasonable person
would have realised there was a means of escape available.
An interesting example occurred in the case of Sayers v Harlow Urban District
Council 83 where the courts held that the restraint was total but not intentional. The
relevant facts are set out below.
Mrs Sayers went to a toilet cubicle in the council’s public rest rooms. The toilets
were of the coin-operated type and, after entering the toilet, Mrs Sayers was unable
to leave because of a problem with the door handle. She was unable to attract any-
body’s attention so, having some degree of initiative, Mrs Sayers attempted to climb
over the top of the toilet cubicle. In order to do so Mrs Sayers was obliged to place
her weight on the toilet roll fitting on the wall of the toilet cubicle. The fitting gave
way under her weight and Mrs Sayers slipped and fell to the floor injuring herself.
174
Mrs Sayers brought an action against the council for false imprisonment and neg-
ligence. The court dismissed Mrs Sayers’ claim of false imprisonment on the basis
that the restraint had been complete but not intentional. The court upheld Mrs
Sayers’ claim of negligence against the council because of the faulty door handle.
However, the court reduced her damages by 25 percent on the grounds of contribu-
tory negligence in that she should not have relied on the toilet roll fitting in the
cubicle to carry her weight while attempting to escape.
In the New South Wales case of Hart v Herron the plaintiff, Mr Hart, successfully
sued Dr Herron for, amongst other things, wrongful imprisonment when he was
admitted to Chelmsford Private Hospital and administered narcosis therapy and
electroconvulsive therapy (ECT) without his consent.84 It was held that the restraint
amounted to wrongful imprisonment even though he had no recollection of it
happening.
Defences to an action alleging false imprisonment

REASONABLE CONDITION
It is not false imprisonment to prevent a person from leaving a particular premises
because he or she does not wish to fulfil a reasonable condition subject to which
the person entered them. The matter of Herd v Weardale Steel Co85 provides an
example of this situation. The relevant facts are set out below.
Mr Herd was employed as an underground miner. The usual routine was that
the workmen would report for duty at a particular time and would be taken by lift
down the mineshaft, where they would work their shift. It was understood that,
except in certain emergencies, the workmen would remain down the mineshaft until
the completion of their shift and would then be brought to the surface by lift. Mr
Herd was taken down the mineshaft, assigned to a job, which he then refused to
do, and demanded to be taken to the surface. The management refused to do so
until the normal lift time some hours later. Mr Herd brought an action against his
employers for false imprisonment. His claim failed on the basis that Mr Herd
entered the lift to go down the mineshaft on the reasonable condition that he would
undertake a particular job and be returned to the surface at a particular time. In
doing so Mr Herd had submitted to a restriction on his liberty and the employers
were not liable.
LAWFUL ARREST IN RELATION TO CRIMINAL OFFENCES

A lawful arrest is not false imprisonment. Accordingly, for example, a police officer
or other authorised person who arrests another person, pursuant to the issue of a
valid warrant for that person’s arrest, cannot be sued for false imprisonment.
SPECIFIC DEFENCES IN RELATION TO HOSPITALS AND HEALTHCARE GENERALLY

The right of hospitals and healthcare centres to detain or restrain patients arises by
the operation of statutory or common law as follows.
Detention of patients
• The relevant mental health legislation in each state and territory gives health
authorities limited power to detain those people, against their will, who come
175
within the provisions of the legislation. The power to admit, treat and detain
involuntary patients under the provisions of the mental health legislation of
each state and territory is fully covered in Chapter 11.
• Relevant legislation in each state and territory gives health and welfare
authorities the power to detain a child in hospital or an appropriate place
without parental consent for the purposes of examination and treatment in the
case of suspected child abuse. This matter was covered earlier in this chapter in
the section headed ‘Reporting, examination and treatment of children at risk
without parental consent’.
• Specific provision under public health legislation may provide for the
detention and treatment of persons with particular diseases in the interests of
public health or safety, or obligatory notification by medical practitioners to
health authorities of persons with ‘proclaimed’ notifiable diseases. For example,
the Commonwealth Quarantine Act 1908 empowers health authorities to
detain people attempting to enter Australia with suspected infectious diseases.
They can be detained onboard ship or in a quarantine station.
Apart from any statutory powers to detain, which have already been referred to,
there is no common-law power to detain a person in hospital against that person’s
wishes, no matter how ill the person may be. In situations where a patient of full
legal capacity insists on leaving hospital against all medical advice, he or she must
be allowed to do so. As a matter of policy, most healthcare facilities will have a
standard voluntary discharge form, which the patient should be asked to sign,
indicating that he or she is leaving the hospital against medical advice. If the patient
refuses to sign such a form the patient must still be permitted to leave and the
appropriate entry made in the patient’s notes, detailing the events surrounding the
patient’s departure from hospital. The patient’s relatives or carers should be advised
as soon as possible of the patient’s intentions.
Restraint of patients
There are occasions in hospitals and nursing homes when patients become violent,
aggressive and extremely difficult to properly control and care for. The reasons for
this aggression are many and varied and a great deal of valuable advice is available
to healthcare professionals on dealing with violence and aggression.86 However, if
strategies to de-escalate the violence or aggression fail, or if for some other clinical
reason the patient is a danger to themselves or others, nursing staff may need to
restrain a patient in order to protect:
• the patient from injury — particularly if the patient is a child;
• other patients who may be at risk;
• themselves from unnecessary risk or harm, but remembering that such restraint
is for protection and not for the convenience of staff.
As far as nursing staff are concerned, the application of any restraint to a patient
or resident against their wishes must only be done following a careful consideration
176
of the issues involved and consultation with the patient’s medical practitioner and,
where possible, the patient’s relatives. Every hospital and healthcare organisation
should have a clear policy on this issue, which should be known to all nursing staff.
In compiling such a policy the following points should be considered:
• the circumstances in which restraint may be deemed necessary;
• the type of restraint that may be applied by nursing staff in an emergency
before a medical officer can arrive — for example, standard lamb’s wool arm
and leg restraints or cot sides;
• the need to notify the appropriate medical officer;
• the need for the patient to be examined by a medical officer to confirm the
need for restraint and to order any other measures that may be necessary, such
as a change of medication or the need to transfer the patient to a more
suitable location or ward to be cared for;
• the written confirmation of the need for restraint to be made in the patient’s
notes by the medical officer;
• regular assessment and review of any restraint applied;
• the patient’s or resident’s relatives should be advised and consulted of any
measures to be taken to restrain the patient before they become alarmed or
unduly concerned.
The Australian Government Department of Health and Ageing has produced a

decision-making tool for responding to issues of restraint in aged care. The docu-
ment is well set out and, whilst obviously designed with aged care in mind, is equally
of value in the acute care sector.87 It is available electronically and will be most
helpful both in avoiding the use of restraint and in the safest and most effective
way of using restraint in acute and aged care facilities.
CONCLUSION
The question of giving and refusing consent to treatment is of considerable impor-
tance for nurses. However, despite the level of concern which the question of
consent generates, in reality the essence of this area of law relates to respect for
people’s integrity and care and diligence in the communication of information.
Many health organisations in Australia at national, state and local level, in addition
to many consumer groups, have undertaken a lot of work and produced valuable
aides to assist healthcare professionals and consumers alike to understand their
rights and responsibilities.
Endnotes
Note: All links given below were last accessed on 2) Blake M, ‘Religious beliefs and medical
24 January 2012. treatment: The challenge to patient
1) Kennedy I, ‘The patient on the consent’, (2007) Bond LR 19 (1) at pp 3–4
Clapham Omnibus’, (1984) MLR 47 at 454, http://epublications.bond.edu.au/blr/vol19/
460. iss1/2/.
177
3) Schloendorff v Society of New York Hospital pdfs/12499.pdf; NSW Health, ‘Consent to

(1914) 211 Ny 125, 129; 105, NE 92, 93. medical treatment — patient information’,
4) Malette v Shulman (1991) 2 Med LR at 162. Policy Directive PD2005_406, 2005, http://
5) Ibid, at 165. www.health.nsw.gov.au/policies/pd/2005/
6) Ibid, at 163. PD2005_406.html.
7) Piper D and Iedema R, Literature Review: 16) Fitzroy Legal Service Inc., ‘Information and
Incident Disclosure Policy, Legal Reform and consent’ in The Law Handbook, 2010, http://
Research since 2008, Centre for Health www.lawhandbook.org.au/handbook/
Communication, University of Technology ch19s01s02.php#Ch132Se51394. For a
Sydney, and Australian Commission on Safety consumer-developed document see What
and Quality in Health Care, 2011, p 22. should I be aware of before consenting to
medical treatment? Consumer Health Forum
8) Rogers v Whitaker (1992) 175 CLR 479 at 484.
of Australia, 2008, https://www.chf.org.au/
9) Ibid, at 490. This was reiterated in Rosenberg pdfs/fac/fac-aware-before-medical-treatment.
v Percival [2001] HCA 18. pdf.
10) Malette v Shulman (1991) 2 Med LR at 163. 17) Hart v Herron [1984] Aust Torts Report
11) Ibid. 80-201.
12) Two more recent Australian cases determined 18) Office of Safety and Quality in Healthcare,
by Guardianship Boards overturned the Western Australia Department of Health,
express wishes of the patients not to receive Consent to Treatment Policy for the Western
blood transfusions at the requests of their Australian Health System, 2010, http://
families — Qumsieh v Guardianship and www.health.wa.gov.au/circularsnew/
Administration Board (1998) 14 VAR 46 and pdfs/12499.pdf.
In AB (application for consent to medical 19) The Hon. Wootton J H, QC, Report of the
treatment) (NSWGT, 2004/1867, 6 April Royal Commission into Deep Sleep Therapy,
2004, unreported). For further discussion vol 6, 1990, p 76.
about these and other cases see Stewart C,
‘Advance directives: Disputes and dilemmas’, in 20) Rogers v Whitaker (1992) 175 CLR 479
Freckleton I and Petersen K (eds), Disputes at 484.
and Dilemmas in Health Law, Federation 21) These early American decisions
Press, Sydney, 2006, pp 48–60; and Blake M, acknowledged: ‘a patient needed adequate
‘Religious beliefs and medical treatment: The information about the nature of proposed
challenge to patient consent’, (2007) Bond LR treatment, its risks and feasible alternatives in
19 (1) http://epublications.bond.edu.au/blr/ order to make an intelligent choice about
vol19/iss1/2/. For a balanced account of whether or not to undergo it’, in Teff H,
caring for Jehovah’s Witnesses, including ‘Consent to medical procedures: Paternalism,
possible alternative options for treatment, see self-determination or therapeutic alliance’,
Panico M, Jenq G and Brewster U, ‘When a (1985) LQR 101 at 432.
patient refuses life-saving care: Issues raised 22) Rogers v Whitaker (1992) 175 CLR 479 at
when treating a Jehovah’s Witness’, (2011) 490.
American Journal of Kidney Diseases 58 (4) at 23) Ibid.
647–53. 24) NHMRC, 2004(a), online, op. cit., p 11.
13) National Health and Medical Research 25) NSW Health, 2005, online, op. cit., p 16.
Council (NHMRC), General Guidelines for
26) Ibid, p 13.
Medical Practitioners on Providing Information
to Patients, 2004(a), http://www.nhmrc.gov. 27) Lubbeke A, Suva D, Perneger T and
au/_files_nhmrc/file/publications/synopses/ Hoffmeyer P, ‘Influence of preoperative
e57.pdf. patient education on the risk of dislocation
after primary total hip arthroplasty’, (2009)
14) NHMRC, Communicating with Patients:
Arthritis Care and Research, 61 (4) at 552–8:
Advice for Medical Practitioners, 2004(b),
in particular note the reference list to this
http://www.nhmrc.gov.au/_files_nhmrc/file/
paper that identifies an extensive range of
publications/synopses/e58.pdf.
research papers that recognise the importance
15) See, for example, Office of Safety and Quality of pre-operative information as a prevention
in Healthcare, Western Australia Department for a range of complications.
of Health, Consent to Treatment Policy for the
28) Health Practitioner Regulation National Law
Western Australian Health System, 2010,
Act 2009 (Qld) Part 8, section 140.
http://www.health.wa.gov.au/circularsnew/
178
29) Reason J, Human Error, Cambridge 49) Ibid, at 165.

University Press, New York, 1990. 50) Ibid, at 166.
30) Wilson R, Runciman W, Gibberd R et al., 51) Qumsieh v Guardianship and Administration
‘The quality in Australian health care study’, Board (1998) 14 VAR 46; Qumsieh v
(1995) MJA 163 at 458. Guardianship and Administration Board &
31) Flight Safety Foundation website, http:// Pilgrim [1998] VSCA 45; (Winnecke P,
flightsafety.org. Brooking and Ormiston JJA, 17 September
32) Curtis K, Tzannes A and Rudge T, ‘How to 1988, unreported).
talk to doctors — A guide for effective 52) In AB (application for consent to medical
communication’, (2011) International Nursing treatment) (NSWGT, 2004/1867, 6 April
Review 58, 13–20, http://onlinelibrary.wiley. 2004, unreported).
com/doi/10.1111/j.1466-7657.2010.00847.x/ 53) Re T [1993] Fam 95.
full. 54) Ibid, at 95.
33) NHMRC, 2004(a), online, op. cit., p 12. 55) Re MB [1997] EWCA Civ 1361; Re L
34) Re C (Adult: Refusal of Treatment) [1994] (Fam Div, Kirkwood J, 5 December 1996,
1 WLR 290. unreported).
35) Ibid, at 295. 56) Re L (Fam Div, Kirkwood J, 5 December
36) Devereux J and Parker M, ‘Competency issues 1996, unreported) at 837.
for young persons and older persons’, in 57) For example, Minors (Property and Contracts)
Freckleton I and Petersen K (eds), Disputes Act 1970 (NSW); Minors Contracts
and Dilemmas in Health Law, Federation (Miscellaneous Provisions) Act 1979 (SA); and
Press, Sydney, 2006, p 54. Minors Contracts Act 1988 (Tas).
37) Ibid, p 58. 58) For example, the Child Protection Act 1999
38) Bidmeade I, ‘History of disability in South (Qld).
Australia’, 2007, http://history.dircsa.org.au/ 59) New South Wales Law Reform Commission
stories/ian-bidmeade/. This link contains (NSWLRC), Report 119: Young People and
information on all jurisdictions. Consent to Health Care, 2008, http://www.
39) Fogarty B, Guardianship and Administration lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/
Laws across Australia, Intellectual and vwFiles/r119.pdf/$file/r119.pdf.
Disability Rights Service, 2009, p 3, http:// 60) Ibid, p xii.
www.idrs.org.au/_pdf/Guardianship_and_ 61) Department of Health and Community Services
administration_laws_across_Australia_by_ (NT) v JWB (Marion’s case) (1992) 175 CLR
Ben_Fogarty.pdf. 218.
40) Ibid. 62) Ibid, at 237–8.
41) Stewart C et al., Discovering Australian 63) Ibid.
Guardianship Law, 2012, http://www.
64) NSW Health, 2005, online, op. cit., p 20.
austguardianshiplaw.org/.
65) NSWLRC, 2008, online, op. cit., p 142.
42) Guardianship and Administration Board,
Consent to Medical and Dental Treatment, 66) Ibid.
2007, http://www.guardianship.tas.gov.au/ 67) K v Minister for Youth and Community Services
consent_for_treatment. (1982) 1 NSWLR 311.
43) HG, Re [2006] QGAAT 26 (5 May 2006), 68) McMahon M, ‘Re-thinking confidentiality’, in
http://www.austlii.edu.au. Freckleton I and Petersen K (eds), Disputes
44) WK v Public Guardian (No 2) [2006] and Dilemmas in Health Law, Federation
NSWADT 121 (20 April 2006), http://www. Press, Sydney, 2006, p 568.
austlii.edu.au. 69) Dartmouth Institute for Health Policy and
45) BAH, Re [2007] NSWGT 1 (5 February Clinical Practice, Dartmouth Atlas of Health
2007), http://www.austlii.edu.au. Care: End of Life Care, 2012, http://www.
dartmouthatlas.org/data/topic/topic.
46) Public Advocate v RCS (Guardianship) [2004]
aspx?cat=18.
VCAT 1880 at [74] and [75].
70) Ibid.
47) Kerridge I, Lowe M and Stewart C, Ethics
and Law for the Health Professions, 3rd ed, 71) Blasi Z V, Hurley A C and Volicer L,
Federation Press, Sydney, 2009, p 293. ‘End-of-life care in dementia: A review of
problems, prospects and solutions in practice’,
48) Malette v Shulman (1991) 2 Med LR at 162.
179
(2002) Journal of American Directors advice’, (2009) British Medical Journal 339
Association 3:57–65; Jones R G, ‘Ethical and b4693, http://www.bmj.com/content/339/
legal issues in the care of people with bmj.b4693.
dementia’, (2001) Reviews in Clinical 79) Carter B, ‘Legal issues at end of life: A
Gerontology 11:245–68; Volicer L, Cantor M guardian’s perspective’, (2003) Chisholm
D, Derse A R, Edwards D M, Prudhomme A Health Ethics Bulletin 8(3): 4–6.
D, Rasinski-Gregory D C, Reagan J E, Tulsky 80) Stewart C, ‘Advance directives: Disputes and
J A and Fox E, ‘Advance care planning by dilemmas’, in Freckleton I and Petersen K
proxy for residents of long-term care facilities (eds), Disputes and Dilemmas in Health Law,
who lack decision-making capacity’, (2002) Federation Press, Sydney, 2006; Wilmott L,
Journal of the American Geriatric Society White B and Howard M, ‘Refusing advance
50:761–7. For an extensive discussion on refusals: Advance directives and life-sustaining
policy and legislation in end-of-life care, see medical treatment’, (2006) Melbourne
Chiarella M, Policy in End-of-life Care: University Law Review 7 30(1) at 211, http://
Education, Ethics, Practice and Research, Quay www.austlii.edu.au/au/journals/
Books, London, 2006. MULR/2006/7.html.
72) Also known as advance care directives and 81) See also Guidelines for End-of-life Care and
advance health directives. Decision-making, 2005, http://www.health.
73) Stewart C, ‘Advanced directives. The right to nsw.gov.au/pubs/2005/pdf/end_of_life_care.
die and the common law: Recent problems pdf; and Using Advanced Care Directives
with blood transfusions’, (1999) Melbourne (NSW), 2005, http://www.health.nsw.gov.au/
University Law Review 6. policies/gl/2005/GL2005_056.html.
74) See, for example, the New South Wales 82) Advance Care Planning Fact Sheet,
Government website that incorporates a range Department of Health and Human Services,
of documents, policies, legislation and general Tasmania, 2009, http://www.dhhs.tas.gov.
advice for planning ahead, http://www. au/__data/assets/pdf_file/0008/36935/
planningaheadtools.com.au/. Advance_Care_Planning_130509.pdf.
75) Cruzan v Director, Missouri Department of 83) Sayers v Harlow Urban District Council [1958]
Health 497 US 261 (1990). 1 WLR 623.
76) Advance Care Directive Association Inc., 84) Hart v Herron [1984] Aust Torts Reports
What is advance care planning? 2012, http:// 80-201, Fisher J.
www.advancecaredirectives.org.au/ 85) Herd v Weardale Steel Co [1915] AC 67.
index.html. 86) Lindsey P, Violence and Aggression in the
77) Bonner S, Tremlett M and Bell D, ‘Are Workplace: A Practical Guide for all Health
advance directives legally binding or simply Care Staff, Radcliffe Publishing, Oxford,
the starting point for discussion on patients’ 2006.
best interests?’ (2009) British Medical Journal 87) ‘Decision-making tool: Responding to issues
339 b4667, http://www.bmj.com/ of restraint in aged care’, Department of
content/339/bmj.b4667. Health and Ageing, 2004, http://www.health.
78) Davies M, ‘Are advance directives legally gov.au/internet/main/publishing.nsf/Content/
binding or simply the starting point for AE6A3DEC50534D27CA256F4700752CFF/
discussion on patients’ best interests? Legal $File/decisiontool04.pdf.
180
Chapter 5
The contract of employment,
including occupational health and
safety and workers compensation
The contract of employment

Essentially, a contract is an agreement that gives rise to rights and obligations
between the parties to the agreement, and such rights and obligations will be pro-
tected and enforced by the law. Most people enter into a wide variety of contracts
every day of the week, ranging from simple contracts when purchasing goods from
the local supermarket to the more complex contract when purchasing a new home.
The principles of the law of contract also have application and importance for nurses
and midwives in relation to the contract of employment between them and their
employer.
The employer–employee relationship is based on the contract that is created
between the two parties when the employer engages an employee to perform work
under the employer’s direction and control. Such a relatively simple statement is
influenced and constrained by legislation and a range of legal principles as well as
the administrative machinery that has been created to deal with issues that arise as
a result of the contractual relationship.
An integral part of industrial law is industrial relations. This can be defined as
the climate created within the legal framework of the contract of employment in
order to achieve a harmonious working environment and maximum benefits to the
employer and the employee at the workplace. Industrial relations is not a subject
or area of concern that can be put into a compartment within an organisation and
called upon as required. It has implications in every facet of an organisation’s activi-
ties, because it is concerned not only with demands made in relation to wages and
conditions of employment but with human interaction at the workplace. The ability
of an organisation to create a working environment which is both harmonious
and constructive for the employer and employee is largely determined by the degree
of recognition given to the human factor and the individual as part of the
organisation.
In any general consideration of industrial law and the employer–employee rela-
tionship, it is essential to keep in mind the distinction between an employee and
an independent contractor. That distinction has been clearly spelled out in this text
in relation to the doctrine of vicarious liability (see Chapter 3). The great majority
181
of nurses and midwives working throughout Australia are employees, but those
nurses or midwives working as private duty nurses, homebirth midwives or, in some
circumstances, agency nurses, are more often than not independent contractors.
Any dispute on that threshold issue would have to be determined having regard to
the facts and circumstances giving rise to the particular situation. Apart from the
doctrine of vicarious liability, the major reason it is necessary to make the distinc-
tion between the two is that an independent contractor is unable to claim the
benefits and conditions of an industrial award or workplace agreement and, in most
cases, the statutory entitlements of long service leave, annual leave, parental leave
and so on.
The legal principles relating to the formation of a contract of employment apply
in exactly the same way as they do to the formation of any other contract. The
following five conditions must exist:
1) There must be an offer and acceptance — in the contract of employment it is
the employee who makes the employer an offer to work, which the employer
can accept or reject.
2) There must be valuable consideration; that is, money or money’s worth. In
the contract of employment, the consideration is the exchange of services for
money; that is, salary or wages, together with any other conditions that are
agreed to apply.
3) There must be the intention to create a legal relationship. In the contract of
employment, a person who volunteers to ‘help out’ in emergencies or other
situations would not normally be deemed to be intending to create a legal
relationship and therefore would not be an employee. Some exceptions may
arise to that statement for workers compensation purposes, but not
otherwise.
4) The parties must have the legal capacity to enter into the contract. In the
contract of employment relating to nurses and midwives there is generally no
difficulty on this issue. The issues that affect a person’s legal capacity to enter
into a contract may be briefly and primarily categorised at this point as:
a) persons who are children;
b) persons who are deemed to be mentally ill or suffer from a developmental
disability; or
c) drunkards or persons so affected by any other drug or substance as to be
incapable of understanding the nature of the agreement.
5) The work to be performed must not be an unlawful act.
Terms and conditions of the contract of employment

An important part in establishing the contractual relationship is the necessity to
determine the terms and conditions of the contract which have the effect of creating
obligations on the parties to the contract. Some obligations in any contract of
employment arise impliedly (or automatically) by the operation of long-established
common-law principles; for example, an employee’s obligation to obey all lawful
and reasonable directions of an employer. Such obligations do not necessarily have
to be written down in a contract for them to apply. In many instances, however,
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5 • The contract of employment
such common-law obligations are often found embodied within contracts of

employment.
For most employees, including nurses and midwives, the contract of employment
is to be found within the award or agreement covering their place of work. The
document may be referred to as an industrial award or enterprise agreement or
workplace agreement.
There are also statutory provisions that complement the terms and conditions
found in industrial awards or agreements. For example, an employer’s obligation to
provide a safe place of work is reaffirmed in occupational health and safety legisla-
tion in all states and territories as well as Commonwealth workplaces.
While most contracts of employment are in writing in one form or another, it is
possible, though unusual, to create a legally binding contract of employment simply
by verbal agreement between the employer and the employee. The reason why it is
unusual is that the majority of employment situations are covered by an industrial
award or written agreement of some kind.
THE EMPLOYEE’S OBLIGATIONS

In many instances, the employee’s obligations may or may not be expressly spelled
out in any contract of employment, be it an industrial agreement or otherwise.
Nevertheless, if not expressly spelled out, they apply as implied conditions or obli-
gations imposed on the employee in the contractual relationship with the employer
and may be expressed as:
1) The employee has a duty to obey all lawful and reasonable directions of the
employer. The significant words are ‘lawful’ and ‘reasonable’. In most
workplaces, many of the employer’s lawful and reasonable commands are
conveyed to the employee via written policies, procedures and protocols and
the employee is required to comply with them. What would be reasonable
would depend on the facts and circumstances of the situation under
consideration.
2) The employee has a duty to display due care and diligence in the performance
of his or her work and to perform it competently.
3) The employee has a duty to account to the employer for all moneys and
property received in the course of employment.
4) The employee has a duty to make available to the employer any process or
product invented by the employee in the course of employment.
5) The employee has a duty to disclose to the employer information received by
the employee relevant to the employer’s business.
6) The employee has a duty to be faithful and loyal to the employer’s interests.
7) The employee has a duty to indemnify the employer for financial liability
incurred by the employer on the employee’s behalf under the doctrine of
vicarious liability. As already explained in Chapter 3, this common-law duty
is generally not enforced by the employer and, in New South Wales and South
Australia as well as the Northern Territory and the Commonwealth, specific
statutory provisions have been introduced to prohibit the employer from
enforcing the employee’s duty to indemnify.1
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THE EMPLOYER’S OBLIGATIONS

Generally speaking, an employer’s obligations have been almost totally reinforced
by the creation of industrial agreements and by statute. The employer’s obligations
may be generally expressed as:
• the duty to pay salary or wages and provide any other conditions of
employment agreed upon or expressly provided for by statute or otherwise;
• the duty to provide a safe system of work; and
• the duty not to discriminate against people in employment on various grounds
such as sex, religion, race or disability.
Discrimination
Each of the states and territories as well as the Commonwealth has legislation
that imposes a duty on employers not to discriminate against people in employment
on various grounds such as sex, religion, race or disability. The respective states as
well as the Commonwealth generally cover the same areas but some offer more
extensive protection than others. The relevant legislation is as follows:
• Australian Capital Territory — Discrimination Act 1991: The employer is not
to discriminate on the grounds of sex, sexual harassment, sexuality,
transsexuality, age, profession, trade, occupation or calling, relationship status,
status as a parent or carer, pregnancy, race, racial vilification, religious or
political conviction, impairment, membership or non-membership of an
industrial organisation, breastfeeding, spent convictions, disability and religious
practice in employment.
• New South Wales — Anti-Discrimination Act 1977: The employer is
not to discriminate on the grounds of race (including colour, nationality
and national or ethnic origin), sex (including pregnancy), marital status,
disability, homosexuality, age (compulsory retirement only), transgender
and carer’s responsibility. As well, conduct deemed unlawful includes sexual
harassment and vilification of homosexuality, race, transgender and HIV/AIDS
status.
• Northern Territory — Anti-Discrimination Act: The employer is not to
discriminate on the grounds of race, sex, sexuality, age, marital status,
pregnancy, parenthood, breastfeeding, impairment, trade union activity,
religious belief or activity, political affiliation and irrelevant medical or criminal
history.
• Queensland — Anti-Discrimination Act 1991: The employer is not to
discriminate on the grounds of sex, relationship status, pregnancy, parental
status, breastfeeding (goods and services only), race, age, physical impairment,
religion, political belief or activity, trade union activity, lawful sexual activity,
gender identity, sexuality and family responsibilities; sexual harassment is
deemed unlawful conduct under the Act.
• South Australia — Equal Opportunity Act 1984: The employer is not to
discriminate on the grounds of sex, sexuality, marital status, pregnancy, race,
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age and physical and intellectual impairment (but does not include mental
illness); sexual harassment is deemed unlawful conduct under the Act.
• Tasmania — Anti-Discrimination Act 1998: The employer is not to
discriminate on the grounds of age, breastfeeding, disability, family
responsibilities, gender, industrial activity, irrelevant criminal record or medical
record, lawful sexual activity, marital status, relationship status, parental status,
political activity, belief or affiliation, pregnancy, race, religious activity, belief or
affiliation, sexual orientation, sexual harassment or inciting hatred on the basis
of race, disability, sexual orientation or religion.
• Victoria — Equal Opportunity Act 1995: The employer is not to discriminate
on the grounds of sex, sexual orientation, gender identity, pregnancy,
breastfeeding, marital status, status as a carer, age, race (including colour,
nationality, ethnic or national origin), parental status, physical features,
childless or a de facto spouse, lawful religious or political belief or activity,
impairment (including physical impairment, mental illness, mental
retardation), industrial activity and lawful sexual activity and sexual
harassment.
• Western Australia — Equal Opportunity Act 1984: The employer is not
to discriminate on the grounds of sex, sexual orientation, marital status,
pregnancy, race, religious or political conviction, age, racial harassment,
impairment, family responsibility or family status, gender history and sexual
harassment.
• The Commonwealth Government has a number of pieces of legislation dealing
with discrimination overseen by the Australian Human Rights Commission.
The relevant legislation is:
– Age Discrimination Act 2004
– Australian Human Rights Commission Act 1986
– Disability Discrimination Act 1992
– Racial Discrimination Act 1975
– Sex Discrimination Act 1984.
Complaints made in relation to issues of discrimination are dealt with by the

commission or board established under the legislation of each of the states and ter-
ritories, and the Commonwealth. For example, in the Australian Capital Territory,
there is a Discrimination Commissioner and New South Wales has the Anti-Dis-
crimination Board. Queensland has an Anti-Discrimination Commission as does
the Northern Territory. South Australia, Victoria and Western Australia have a
Equal Opportunity Commissioner. If a complaint is unable to be successfully con-
ciliated, it is generally referred to a tribunal for hearing and determination. If a
complaint is made under the Commonwealth legislation, it is dealt with in the first
instance by the Australian Human Rights Commission. If it is unable to be concili-
ated, the complaint may then be taken to the Federal Court of Australia or the
Federal Magistrates Court.
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The creation of an industrial award or workplace agreement

As already stated, one of the employer’s obligations in the contract of employment
is to pay wages and to provide any other conditions agreed upon between the
employer and the employee or as provided by legislation. That obligation has, in
most cases, long been embodied in industrial awards and/or agreements, the latter
also known as enterprise agreements or workplace agreements. In some circum-
stances it may be an individual contract between the employer and the employee
concerned.
Industrial awards or workplace agreements apply to almost 80 percent of employ-
ees in Australia. (People who are self-employed and professionals whose associations
set their scale of fees do not belong in this category.)
As a statement of general application, an industrial award or workplace agreement
is a document setting out the wages and conditions of employees who are employed
in a particular industry or workplace and who are deemed to be covered by the
particular document in question.
In Australia, the creation of industrial awards and workplace agreements has been
overseen by industrial tribunals of the states, territories and the Commonwealth
within the constraints of their respective constitutional powers and supported by
an associated legislative framework.
Until relatively recent times, the majority of the states and territories had their
own independent industrial tribunals to determine wage rates, together with condi-
tions of employment and associated ancillary matters for employees working within
state and territory-based industries. For example, in New South Wales, the Indus-
trial Relations Commission exercised that power. In relation to Commonwealth
employees and those employees who, as a general proposition, were employed in
an industry that went beyond the borders of one state or territory, the Common-
wealth’s Australian Industrial Relations Commission (AIRC) did likewise.
Since 2006, much of that has been significantly altered as a result of the Com-
monwealth utilising the corporations power within the Constitution to assert its
dominance over the states and territories in relation to the regulation of industrial
relations in Australia. At that time, in a significant extension of its powers in rela-
tion to the legislative underpinning of industrial relations in Australia, the Com-
monwealth amended the then Commonwealth Workplace Relations Act 1996 to
insert into it what were generally known as the WorkChoices amendments.
The major changes effected by the new legislation were to expand the federal
system of industrial regulation at the expense of the states and territories and, in
doing so, to give employers greater freedom in the terms on which they could hire
and fire workers. As well, all employees in Australia employed by what was described
as a ‘constitutional corporation’ were to be covered by the WorkChoices amend-
ments and therefore subject to the Commonwealth’s industrial relations powers. As
a result, the only employees exempted from the provisions of the WorkChoices
amendments were state Crown employees, public sector employees in some states
and territories and those people employed by unincorporated bodies such as small
businesses.
In 2009, following a change of federal government, the Commonwealth replaced
the Workplace Relations Act 1996, which incorporated the WorkChoices
186
amendments, with the Fair Work Act 2009. The provisions of the Fair Work Act
applied from 1 January 2010 to all employees in the federal industrial relations
system. The extended coverage of employees that had been a hallmark of the earlier
WorkChoices amendments was retained. As well, the Commonwealth, with the
exception of Western Australia, reached agreement with all of the states and terri-
tories for those states and territories to transfer to the Commonwealth their indus-
trial relations powers so that employees who were employed by a small business that
was not a ‘constitutional corporation’, as understood, would now be covered by the
Fair Work Act. What that meant was that those employees employed by a small
business that was not incorporated had their workplace terms and conditions trans-
ferred to Commonwealth legislative control under the Fair Work Act 2009. For those
states with a state-based industrial tribunal structure, the only employees left for
them to deal with were Crown employees and those public sector employees not
already employed under a federal industrial award or agreement.
The major change established by the Fair Work Act was to identify National
Employment Standards that are to be mandatory basic entitlements in all industrial
awards or enterprise agreements. The standards identified are:
• maximum weekly hours of work;
• the right to request flexible working arrangements;
• parental leave and related entitlements;
• annual leave;
• personal/carer’s leave and compassionate leave;
• community service leave;
• long service leave;
• public holidays;
• notice of termination and redundancy pay;
• provision of a Fair Work information statement, which details the rights and
entitlements of employees under the new system and how to seek advice and
assistance.
As well, the unfair dismissal rights of employees were amended. Under the previ-
ous WorkChoices amendments, employees working in a business with up to 100
employees could be dismissed for any reason without any right to challenge the
dismissal. Under the Fair Work Act, an employee may file a claim for unfair dismissal
if the employee has completed a minimum employment period of 12 months with
a small business and 6 months in all other cases. A small business is defined as a
business with fewer than 15 employees.
In relation to nurses and midwives, the situation varies as between the states and
territories and as between nurses and midwives employed in the public sector and
those employed in the private sector.
In New South Wales, nurses and midwives employed in the public sector con-
tinue to be covered by state industrial awards determined by the Industrial Relations
Commission of that state. In all other states and territories, federal awards or agree-
ments apply.
187
In relation to the private sector, in all states (including New South Wales) and
territories, where the employer is a ‘constitutional corporation’, the Common-
wealth’s Fair Work Act applies. Healthcare industry employers in the private sector,
be it private hospitals, nursing homes, medical centres or community-based care
centres, are all invariably operating as corporations, which is the catalyst for invok-
ing the Commonwealth Fair Work Act provisions. Accordingly, such nurses or
midwives would be covered by the terms and conditions of a federal award or
workplace agreement.
There would also be a number of nurses or midwives in the private sector, par-
ticularly in relatively small medical centres and/or general practice areas, who would
be employed pursuant to a federally registered employment agreement.
Whatever the circumstances of employment are, a nurse or midwife should, at
the commencement of employment, take steps to ascertain the nature of the
employment contract and its terms and conditions. In most circumstances, particu-
larly in the public sector, it will be an industry-wide award or enterprise agreement.
In the private sector, it may be an agreement relating just to the individual hospital,
nursing home or healthcare centre, or it may be an agreement relating to all staff
employed in private hospitals or nursing homes owned and/or operated by an
industry-wide corporation; for example, Hospitals Corporation of Australia in rela-
tion to private hospitals owned by that group, or the Uniting Church in the nursing
home industry.
In all states and territories, advice about employment wage rates together with
terms and conditions of employment can be obtained from the state or territory
branch of the Australian Nursing Federation (known as the New South Wales
Nurses’ Association and the Queensland Nurses’ Union in those states).
In addition to any role an industrial tribunal may have in the determination of
industrial awards or workplace agreements, the industrial system is also called upon
to deal with other industrial issues that arise out of the contract of employment. In
general terms such industrial issues come about as a result of a disagreement or
dispute that arises between the employer and the union on behalf of an individual
employee or on behalf of all of the employees covered by a particular award or
workplace agreement. Such disputation can arise for a variety of reasons; for example:
• disagreement over the proper interpretation of a provision in an award or
workplace agreement;
• disciplinary measures implemented by the employer against an individual
employee that are believed to be harsh and unreasonable — for example,
termination of employment or demotion; and
• disagreement between the employer and employee about increases or changes
in wages or conditions of employment.
On occasions, where agreement is unable to be reached, employees may go

outside the formal industrial process and impose industrial action in the form of
strikes, work bans and limitations in order to force the employer concerned to
accede to employees’ demands in relation to a particular matter. When that occurs,
the employer will normally seek the intervention of the appropriate industrial
188
tribunal requesting that the employees concerned be ordered to return to work or

lift bans. In such a situation, the industrial tribunal will endeavour to resolve the
conflict between the parties by calling them together in proceedings known as a
compulsory conference. At a compulsory conference the parties are encouraged to
discuss the issues openly and frankly in an attempt to reach agreement. If that
should fail a recommendation or order as to what should be done by both parties
may be made.
How the contract of employment is terminated

All contracts that are entered into, whether they be contracts of employment or
otherwise, ultimately come to an end either by the operation of law or by the actions
of either party to the contract. As far as the contract of employment is concerned,
there are a number of ways that employment will be deemed to have terminated.
Once again, the common-law principles concerning the termination of employment
have been modified by statute or by industrial awards. The situations that will give
rise to a termination of the contract of employment are set out below.
A contract for a fixed period or a specific undertaking

A good example of a contract for a fixed period as far as a nurse or midwife is
concerned would be where she or he was employed for the period of maternity
leave. Once the contract period has expired, the contract is terminated. An example
of employment for a specific undertaking might be where a nurse or midwife is
employed for the duration of a research program. When the program is completed,
the contract of employment is terminated.
Death
It is obvious that the employment contract is terminated on the death of an
employee. Equally, if the employer is an individual, the employer’s death will put
an end to the contract. Where the employer is a company or government depart-
ment or quasi-government authority, the death of a company director or depart-
ment secretary does not affect the contract.
Transfer of business
At common law, a termination of employment is deemed to occur when one
company transfers its business to another. However, legislation and award provisions
have intervened in relation to this issue, particularly in relation to leave entitlements.
In most situations, it is usually stated that service with the prior employer shall, on
change of ownership of the business, transfer to the new owner for calculation of
leave entitlements.
Frustration or impossibility of performance

The usual situation that arises under this heading is that the illness or incapacity of
the employee is of such a nature and of such duration as to render an employee
unable to perform his or her work and the obligation of the employee to perform
under the contract is frustrated by the employee’s prolonged ill-health. Obviously,
189
normal sick leave provisions and considerations are not contemplated here but
rather a prolonged and seemingly continuing incapacity on the part of the employee
to carry out the work for which the employee was engaged.
Consent
A contract of employment may be terminated by the mutual consent of both parties.
Redundancy
A contract of employment may be terminated because the position occupied by the
employee is made redundant — generally because the employer is restructuring its
business or where the business is being wound down. In such circumstances, an
employee may be entitled to a redundancy payment. Entitlement to a redundancy
payment is generally based on a week’s or 2 weeks’ pay for every full year of service
with a maximum entitlement capped at a set number of weeks or months.
Generally, the employer has to offer a redundancy to an employee once the
employee registers an interest in being made redundant but the employer generally
cannot be compelled to offer a redundancy payment unless provision is made for
the same in the award or workplace agreement. Under the Fair Work Act National
Employment Standards, redundancy pay is one of the mandatory conditions of
employment that must be provided for in awards and workplace agreements.
It is important to remember that in a redundancy, the position is deemed to be
redundant, not the person who fills it.
Before offering a redundancy, an employer may offer alternative and financially
comparable employment in order to ensure continuing employment and negate the
need for a redundancy payment.
Termination by notice
If a period of notice is not expressly stated, the presumption is that a contract of
employment may be terminated by reasonable notice of either party. Once again,
statute and particular awards have modified this presumption so that all awards now
state a specific period of notice which either party must give in order to terminate
the contract of employment.
The period of notice required to be given can vary, but for most employers and
employees the requisite period is 1 or 2 weeks.
The obvious exception to the necessity to give notice is where the employer has
the right to summarily dismiss an employee on the grounds of misconduct. There
is no general legal definition of misconduct as each case would have to be looked
at in the light of its own particular facts and circumstances. The type of conduct
that has, in the circumstances of each case, justified summary dismissal has
ranged from:
• a wilful refusal by an employee to obey a lawful and reasonable direction from
the employer;
• insubordination;
• breach of confidence in disclosing an employer’s trade or other secrets;
• drunkenness affecting the employee’s ability to work;
190
• fraud or dishonesty by the employee in his or her employment; and/or

• conviction of a crime, but only if the conduct constituting the crime
is inconsistent with the proper performance of his or her duties as an
employee.
Apart from circumstances that would warrant summary dismissal, there is still
the right of the employer or the employee to terminate the contract between them.
As far as the employer is concerned, that right has been constrained to some extent
by the statutory power given to industrial tribunals to reinstate employees. The
major factor that has to be established in asking an industrial tribunal to reinstate
an employee is that the employee’s dismissal is harsh and unfair. In other words,
whatever the employee did or failed to do did not warrant the ultimate penalty of
dismissal. In certain circumstances a tribunal may order compensation to the
employee in lieu of reinstatement.
What constitutes an ‘unfair’ dismissal warranting reinstatement?

As always in such matters, there are no hard and fast principles that determine
whether an employee has been treated fairly. Each case has to be judged on its own
facts and circumstances and very rarely are two situations exactly the same. However,
in arriving at a decision as to whether or not an employee has been treated fairly,
the following factors would warrant consideration:
• The employee’s length of service and previous conduct. Obviously an employee
with many years of loyal and good service to the employer would warrant
more favourable consideration than an employee with a short period of service
and previous disciplinary problems.
• Has the employer clearly spelled out the duties and responsibilities expected of
the employee? It may be that an employee’s failure to perform a particular duty
is due to the failure of the employer to inform the employee that the particular
duty is expected of him or her, rather than the employee’s refusal or inability
to perform it.
• Has the employer drawn the alleged breach of duty to the employee’s
attention? Condonation by the employer of a course of conduct by an
employee over a long period which the employer then uses to justify
dismissal would not, in most situations, be sufficient to warrant
dismissal.
• Once the alleged breach of duty has been drawn to the employee’s attention,
has he or she been given the opportunity to rectify the problem?
• Is there anything the employer could or should have done to rectify the
problem? For example, it may be that an employee’s excessive absences from
work are due to domestic problems which may be able to be resolved with
advice from the personnel department or staff counselling.
• If the employee’s alleged breach of duty continues without good reason, the
employer should firmly warn the employee in writing that his or her continued
employment is in jeopardy and request an improvement.
191
• A further continuation of the alleged breach of duty on the part of the

employee, without good reason, would normally be sufficient grounds to
justify dismissal.
As long as the employer can show that the steps taken leading up to the employ-
ee’s dismissal were fair and reasonable having regard to the employee’s conduct,
an industrial tribunal will not interfere with an employer’s right to dismiss an
employee.
As well as determining whether or not an employee has been treated fairly, an
industrial tribunal is also concerned to ensure that, should an employee be rein-
stated, harmonious working conditions will prevail. Industrial tribunals are con-
cerned with solving industrial disputes, not creating them. If it was thought that
the reinstatement of a dismissed employee would create further industrial disruption
at the workplace, an industrial tribunal would be reluctant to reinstate the employee
even if it was established that the employee had been unfairly treated.
Workplace health and safety

In addition to the relevant occupational health and safety legislative provisions in
place, workplace health and safety should be understood from three legal
perspectives:
1) An employer’s obligations to provide a safe place of work pursuant to the
relevant occupational health and safety provisions. A breach of an employer’s
obligations to do so will render them liable to criminal prosecution for a
breach of their occupational health and safety obligations and a significant
financial penalty if the offence is found to be established.
2) The rights of an employee to claim compensation for work-related injuries.
That right and subsequent entitlement arises under the relevant workers
compensation legislation of each state and territory or, where applicable, the
Commonwealth.
3) The right of an employee to claim monetary damages from an employer for
personal injury arising from an employer’s failure to provide a safe system of
work.
This right is generally understood as arising from an employer’s common-law

obligation to provide a safe system of work and is considered and dealt with within
the principles of common-law negligence as part of the law of torts. Given that the
basis for any claim arises under the employment contract, there is a close inter-
relationship between any claim arising under workers compensation and a personal
injury claim arising from an employer’s negligence for a work-related injury. The
major difference between the two is that in relation to workers compensation, in
order to bring a claim, an employee is only required to establish that he or she
sustained a work-related injury. In a personal injury claim for negligence, the
employee would have to establish all the principles required to succeed in civil
negligence, constrained as it now is by changes to civil liability law in each of the
states and territories.
192
To further understand the principles of civil liability, with particular emphasis

on professional negligence, reference should be made to Chapter 3.
Occupational health and safety legislation

Each of the states, territories and the Commonwealth have enshrined employer and
employee obligations for the health and safety of people in a workplace within
relevant legislation. While there is considerable similarity between the current
respective legislative regimes, there are also differences. Those differences have
created confusion and compliance issues, particularly for employers who have a
business that operates across state and territory borders as well as Commonwealth
instrumentalities. In 2008, the Commonwealth and the states and territories agreed
to harmonise their occupational health and safety laws. In order to give effect to
that agreement, the Commonwealth government passed and proclaimed the Safe
Work Act 2008. The primary role of that Act was to establish a body called Safe
Work Australia. The Commonwealth, all states and territories, as well as employer
and employee representatives, had representation on the Members Group within
Safe Work Australia. The task of Safe Work Australia was to prepare model occu-
pational health and safety laws for adoption as a law of the Commonwealth and
each of the states and territories.
After a comprehensive review of work health and safety laws across Australia, a
draft Work Health and Safety Act was developed by Safe Work Australia and unani-
mously endorsed by the Members Group in December 2009. The intention was
for all states and territories as well as the Commonwealth to pass the new laws
encompassed within the model Work Health and Safety Act within a timeframe that
would see the nationally harmonised laws take effect in all jurisdictions from
1 January 2012.
By the end of 2011, there had been mixed progress in ensuring the passage of
the legislation in the respective states and territories. The Australian Capital Terri-
tory, New South Wales and Queensland have each enacted a new Work Health and
Safety Act based on the agreed model legislation which took effect on 1 January
2012. Victoria and Western Australia have called on the Commonwealth to defer
the implementation of the nationally harmonised occupational health and safety
laws for 12 months. In doing so, the Victorian Government has reaffirmed its
support for the principle of nationally harmonised occupational health and safety
laws and the adoption of the agreed model Act. Western Australia has indicated its
support for much of what is contained within the model laws but proposes to
incorporate those changes into its existing legislation rather than adopt the model
Act in its entirety. The Northern Territory, South Australia and Tasmania are pro-
posing to have the model legislation in place but their respective parliaments have
yet to pass the legislation.
Given the position adopted by Victoria and Western Australia, there has been
some delay in reaching the intended objective of putting in place nationally har-
monised laws in relation to occupational health and safety by the initially agreed
timeframe of 1 January 2012. Until such time as that is achieved, each of the states
and territories as well as the Commonwealth will continue to enforce their respec-
tive existing occupational health and safety laws.
193
The provisions contained in the model Work Health and Safety Act which is the
template for the nationally harmonised legislative system are not significantly
different from those currently applying in the respective occupational health and
safety regimes of the states, territories and the Commonwealth in the general duties
and obligations they impose on employers and employees. Given the intention of
all of the parties to move to the proposed nationally harmonised laws, albeit
with a slightly delayed timeframe, the intention in this text is to refer to the
model Work Health and Safety Act that has been endorsed by all of the states, ter-
ritories and the Commonwealth as representing the relevant law. Where states and
territories have already passed the uniform laws, they have replicated the model
Work Health and Safety Act. As a result, reference to a section of the model Work
Health and Safety Act in this text has the same section number and content in the
New South Wales Work Health and Safety Act 2011 — likewise in the Australian
Capital Territory and Queensland. It is envisaged that when the other states
introduce the new laws they will adopt the same approach so that when the Act is
in place in each state and territory, and the Commonwealth, it will have the
same clause numbers. Regarding the insertion of variations in the various Work
Health and Safety Acts, the agreement is that those variations will not change
the clause numbering system of the Acts (with the possible exception of Western
Australia). To date no state or territory has sought to vary the model Act when
adopting it.
Duty of care owed by an ‘employer’ under the model Work Health and
Safety Act
The model Work Health and Safety Act changes reference to the responsibilities of
an ‘employer’ to the ‘duty of care’ owed by ‘a person conducting a business or
undertaking’ (PCBU). A PCBU by definition (s 5 of the Act) includes an employer,
corporation, association, partners in a partnership, sole trader and certain volunteer
organisations (for example, a volunteer organisation that employs a person to carry
out work is a PCBU, but a volunteer organisation that operates with volunteers and
does not employ anyone is not a PCBU), and householders where there is an
employment relationship between the householder and the worker.
The PCBU has the ‘primary duty of care’ under the Act (s 19). That person must
ensure ‘so far as is reasonably practicable’ the health and safety of workers and ‘other
persons’ (for example, customers or visitors) by removing or reducing risks from
work being carried out as part of the person’s business or undertaking. Such a
duty encompasses, but is not limited to, a safe work environment, safe plant and
equipment, safe systems of work, safe use, handling and storage of plant, structures
and substances, provision of adequate facilities for the welfare at work of workers,
information, training, instruction or supervision necessary to protect all persons at
the workplace, and monitoring of workplace health to prevent illness or injury
(s 19(3)).
There are also duties imposed on a PCBU who:
• manages or controls a workplace (s 20);
• controls fixtures, fittings or plants at a workplace (s 21);
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• designs, manufactures, imports or supplies plants, substances or structures

(ss 22–25);
• installs, constructs or commissions plants or structures for a workplace (s 26).
The duty imposed on all of the above categories of persons is to ensure ‘so far as
is reasonably practicable’ that a workplace is safe and without risks to the health
and safety of any person.
Clearly, central to the wide and general obligation placed on a PCBU to ensure
a safe and healthy workplace ‘so far as is reasonably practicable’ is the obligation to
identify and control risks to safety in the workplace. Risks to safety can occur at
many levels in a workplace. For example, a piece of plant or equipment may be
inherently unsafe because of inadequate guarding of dangerous parts, or the system
of work adopted for a particular task may be unsafe because employees have not
been given sufficient information, instruction, training and supervision to ensure
the task is done safely and without risk to their health.
In order to address its workplace health and safety obligations in a proactive
manner, a PCBU is required to approach the workplace from the perspective of
identifying hazards and then undertaking risk analysis to determine how identified
hazards can be eliminated or controlled.
Workplace hazards are many and varied and include:
• mechanical hazards relating to plant and equipment;
• chemical hazards such as toxic substances, flammable and explosive materials;
• environmental hazards such as dust and fibres from mining and agricultural
activities;
• hazards associated with manual handling, weight lifting and occupational
overuse syndrome;
• biological hazards including infectious diseases from animals or non-infectious
allergic reactions from coming into contact with substances in the workplace.
WHAT IS MEANT BY ‘REASONABLY PRACTICABLE’

The Act (s 18) defines ‘reasonably practicable’ as that which is, or was at a particular
time, ‘reasonably able to be done’ taking into account and weighing up all relevant
matters including:
a) the likelihood of the hazard or the risk concerned occurring;
b) the degree of harm that might result from the hazard or the risk;
c) what the person concerned knows, or ought reasonably to know, about:
i) the hazard or the risk; and
ii) ways of eliminating or minimising the risk; and
d) the availability and suitability of ways to eliminate the risk; and
e) after assessing the extent of the risk and the available ways of eliminating
or minimising the risk, the cost associated with available ways of
eliminating or minimising the risk, including whether the cost is grossly
disproportionate to the risk.
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DEFINITION AND DUTIES OF A ‘WORKER’ AND ‘OTHERS’ UNDER THE ACT

Under the Act an employee is included in the definition of ‘worker’. The Act (s 7)
defines a ‘worker’ as someone who carries out work for a PCBU. A ‘worker’ includes
an employee, labour hire staff, volunteer, apprentice, work experience student,
subcontractor and contractor. As well, a sole trader who is a PCBU and carries out
work for another business (PCBU) is also a ‘worker’ for that PCBU.
The duties of a ‘worker’ (s 28) include that he or she must take reasonable care
for their own safety and ensure that they do not adversely affect the health and
safety of others. A ‘worker’ must also comply with any reasonable instruction and
cooperate with the PCBU’s work health and safety policies and procedures.
Under the Act, ‘others’ at a workplace include clients, customers and visitors.
Their workplace responsibilities (s 29) are similar to those of a ‘worker’. That is,
they must take reasonable care for their own and others’ health and safety and take
reasonable care not to adversely affect the health and safety of others at the work-
place. As well, they must comply with any reasonable instruction given by the
PCBU, as far as they are reasonably able.
OBLIGATION ON A PCBU TO CONSULT WITH WORKERS

Consultation is a hallmark of the model Act. A duty is placed on a PCBU to consult
with workers in relation to workplace health and safety ‘so far as is reasonably
practicable’ (s 47). If there is a health and safety representative at the workplace he
or she must be involved in the consultation (s 48(2)). Section 48 provides for the
nature of the consultation that is to occur; that is:
• relevant information must be shared with workers;
• workers must be given a reasonable opportunity to express their views in
relation to health and safety matters and be able to contribute to decision
making;
• the views of workers are to be taken into account in relation to health and
safety;
• the workers are to be advised on the outcome of consultation in a timely
manner.
Consultation with workers is required in any of the following matters

(s 49):
• identifying hazards and assessing risks to health and safety arising from the
work carried out (or to be carried out) by the business or undertaking;
• making decisions about ways to remove or reduce those risks;
• making decisions about the adequacy of facilities for the welfare of workers;
• proposing changes that may affect the health or safety of workers;
• making decisions about the procedures for consulting with workers, resolving
health and safety issues at the workplace, monitoring the health of workers,
monitoring the conditions at any workplace under the management or
control of the PCBU, and/or providing information and training for
workers.
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REQUIREMENT FOR WORKPLACE HEALTH AND SAFETY REPRESENTATIVE(S), WORK

GROUPS AND HEALTH AND SAFETY COMMITTEES
Provision is made for workplace consultation to occur through workplace health
and safety representative(s) (HSR), a work group and/or an occupational health and
safety committee.
A worker or workers at a workplace may request that one or more HSRs be
elected for the workplace (s 50). The number to be elected would obviously depend
on the size and layout of the workplace and all of the workers at the workplace are
eligible to stand for election and vote. As well, workers may request the establish-
ment of work groups. The purpose of a work group (s 51) is to facilitate the rep-
resentation of the workers in a work group by one or more HSRs. If a request is
made by a worker or workers for the establishment of a work group, it is the respon-
sibility of the PCBU to do all that is necessary to ensure the establishment of one
or more work groups at the workplace (s 51). Work groups are to be established by
negotiation and agreement between the PCBU and the workers or the representa-
tives. Although the Act itself does not specify the circumstances that might give rise
to the establishment of one or more work groups at a workplace, section 56(4) does
state that the Regulations accompanying the Act ‘may’ prescribe matters that may
be taken into account in negotiations and the establishment of work groups. Refer-
ence to regulation 16 of the Model Regulations provides that negotiations for and
determination of work groups must be directed at ensuring the workers are grouped
in such a way that most effectively and conveniently enables their health and safety
concerns to be represented and that a HSR for a work group be ‘readily accessible’
to workers in the work group. Regulation 17 states that matters to be taken into
account in determining the establishments of work groups in a workplace include
the size and nature of the workplace, the diverse skill sets of the workers as well as
work arrangements such as shift work.
The powers and functions of HSRs are considerable; to undertake the full range
of their functions and powers HSRs are required to undergo training. He or she is
to represent the workers in a work group in relation to workplace health and safety,
monitor safety measures in the workplace, investigate complaints from workers in
the work group relating to health and safety and inquire into risks to safety in the
workplace. In undertaking those functions, a HSR may inspect a workplace, accom-
pany an appointed Workplace Standards Inspector in his or her investigations in a
workplace, be present at interviews with a worker relating to health and safety and
receive information relating to the health and safety of workers in a relevant work
group. A HSR can, where there is a serious risk to health and safety, direct a cessa-
tion of work (s 85) and may, in some circumstances, issue a Provisional Improve-
ment Notice (PIN). Such a notice can require a PCBU to remedy a health and
safety contravention, prevent a likely contravention, or take steps to remedy those
matters causing the contravention.
An occupational health and safety committee must be established if requested by
a HSR or five or more workers (s 75). The constitution of such a committee may
be agreed by negotiation between the PCBU and the workers or their representatives
(s 76). If there is a HSR in place, he or she must be on the committee. If there are
two or more HSRs in a workplace, they are to choose one or more of them to be
197
on the committee. There must not be more than half of the committee representa-
tive of the PCBU. The functions of an occupational health and safety committee
are essentially twofold — to facilitate cooperation between the PCBU and the
workers in relation to health and safety issues at the workplace and to assist in the
development of standards, rules and procedures for the workplace relating to health
and safety (s 77).
Overall, the objective is to provide the workplace with an effective occupational
health and safety management system that is acceptable to management and workers
because it has had input from both.
The role of a workplace occupational health and safety committee is to act as an
advisory body — to make recommendations and maintain a watching brief over
occupational health and safety programs and their effectiveness. The committee
itself is not responsible for occupational health and safety — the PCBU remains
responsible for the health and safety of workers and others at all times.
Compliance provisions under workplace health and safety legislation

To ensure employers comply with their legislative obligations in relation to work-
place safety, the legislation provides (s 156) for Workplace Inspectors to be appointed
by the relevant state, territory or Commonwealth authority. Such persons have a
general and specific authority to enter a workplace and, where necessary, enforce
the relevant health and safety laws.
The overall functions and powers of Inspectors are to provide information and
advice in relation to workplace health and safety, to assist in the resolution of health
and safety issues at a workplace, to assist in the access of workplaces by HSRs and
to deal with disputed right of entry issues in relation to authorised union officers.
As well, they are empowered to review disputed Provisional Improvement Notices
issued by HSRs, require compliance in relation to workplace health and safety
matters by the PCBU by the issuing of notices, investigate contraventions of work-
place safety, assist in prosecutions and attend coronial inquests relating to work-
related deaths (s 160).
Inspectors are authorised under the Act (s 163) to enter workplaces without
notice, and to take statements from individuals, photographs and copies of business
records (s 165). They may even remove equipment. As well, they have the power
to give legally binding directions by the issuing of notices as follows:
• prohibition notices mean that work must stop until the problem has been
fixed (s 195);
• improvement notices mean that work can continue while the problem is being
fixed (s 191);
• non-disturbance notices mean a workplace situation must not be disturbed
while a matter is being investigated (s 198).
The Act also requires a PCBU to notify the relevant authority in each state or
territory of any workplace accidents resulting in death or serious injury or a serious
incident defined as a ‘notifiable incident’ (s 35). The notification must be done
‘immediately’ after the incident by ‘the fastest possible means’ (s 38).
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Entry by an authorised union officer

In addition to workplace occupational health and safety committees or representa-
tives, authorised union representatives are able to enter workplaces where they have
members and investigate occupational health and safety matters. To do so, however,
the union official must first possess a Work Health Safety (WHS) entry permit
(s 117). To obtain such a permit, the officer’s union must make application to the
relevant nominated authority and the nominated union official must have com-
pleted prescribed health and safety training (s 131).
Holding a WHS entry permit allows the union official to enter a workplace where
a contravention of workplace health and safety laws is suspected. When exercising
a right of entry where a contravention is suspected, the WHS permit holder may
inspect the workplace, consult with workers and the PCBU, take photographs, copy
relevant documents and warn any person at the workplace of exposure to the risk
to his or her health or safety (s 118).
The PCBU cannot obstruct a union official with a WHS entry permit in under-
taking investigatory tasks in relation to occupational health and safety.
Penalties for non-compliance

The legislation provides for a regime of monetary penalties for a failure to comply
with the recording and reporting requirements of the Act.
If a PCBU or an individual person is charged with an offence for a breach of
their respective obligations under the workplace health and safety legislation, and
the offence is proved according to the criminal standard, significant monetary penal-
ties apply to the corporate body. For an individual found guilty of an offence under
the Act, a period of imprisonment is provided for. The maximum penalty for the
most serious offence by a corporation where death or serious injury has occurred,
a Category 1 offence, is $3 million. If an individual who is a PCBU is found guilty
of a Category 1 offence, the maximum penalty is a fine of $600 000 or 5 years
imprisonment or both (s 31).
A comprehensive workplace health and safety system

Overall, to be effective, a proper approach to workplace health and safety should
incorporate the following elements:
1) clear and comprehensive occupational health and safety policies and protocols
— all policies and protocols should be regularly reviewed;
2) effective workplace communication and consultation;
3) adequate training and information to ensure workers know how to adequately
protect themselves at work;
4) proper and adequate hazard identification and risk assessment;
5) risk control and management flowing from the risk assessment process; and
6) continuous reinforcement of the importance of workplace safety.
An issue of increasing concern to employers as part of providing a safe place of

work in the health system is how to deal with the management of aggression and
assault in the workplace. Healthcare staff, particularly nursing staff, can be, and
199
occasionally are, subject to verbal and physical assault by patients as well as relatives
and friends of patients. This is a particular problem in accident and emergency
units, psychiatric care areas, and nursing homes with a high proportion of residents
with dementia. It is an issue that cannot be ignored by employers who should
put in place effective policies and risk prevention strategies for dealing with the
problem.
Workers compensation
Workers compensation is a form of statutory compensation that, subject to certain
conditions, is available to an employee who is injured at work. The first workers
compensation legislation emerged in Germany in the nineteenth century under
Bismarck’s administration. At different times earlier this century, all of the states,
territories and the Commonwealth (with respect to Commonwealth employees)
passed workers compensation legislation, based largely on the UK workers compen-
sation legislation passed in the United Kingdom Parliament in 1906. Legislative
change has taken place in each jurisdiction over recent years.
Workers compensation versus other types of compensation for injury

at work
Workers compensation is but one of four entitlements which an employee may be
able to claim when he or she suffers an injury at work. The other three entitlements
are:
1) sick leave in accordance with the conditions set out in the relevant industrial
award or workplace agreement;
2) social security payments, for example, disability pension, or unemployment
benefits; and
3) compensation, in the form of damages, arising from an action in negligence
against the employer and/or a third party alleging an unsafe system of work.
Recent legislative changes to workers compensation schemes in most states and

territories, as well as civil liability claims, have placed restrictions on the rights of
workers to make claims in relation to actions for work-related damages for negli-
gence against an employer.
How does an employee qualify for workers compensation payments?

The three essential criteria that must be established to entitle a person to receive
workers compensation are that:
1) the person must be a employee;
2) the person must suffer an injury or disease; and
3) the injury or disease must arise out of or in the course of employment, or the
disease must occur in the course of employment and the employment must be
a contributing factor or it must have contributed to a substantial degree.
Each of those criteria will now be further considered.
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THE PERSON MUST BE AN EMPLOYEE

For the purposes of entitlement to workers compensation, the employment relation-
ship of employer and employee must exist. Once again the major distinction that
must be made here is that between an employee and an independent contractor.
That distinction has been clearly spelled out in Chapter 3. Each of the relevant
Workers Compensation Acts of the states and territories and the Commonwealth
defines those persons who are eligible for workers compensation under the synony-
mous title of either ‘workers’, ‘workmen’ or ‘employees’.
INJURY OR DISEASE
To be entitled to receive workers compensation payments the worker must suffer
an injury which, as generally prescribed in the relevant legislation, arises out of or
in the course of employment, or a disease that occurs in the course of employment
and to which the employment was a contributing factor. In addition, the legislation
generally provides for workers compensation to be paid to cover the aggravation,
exacerbation, deterioration or general worsening of a disease process if the employ-
ment was a contributing factor or the employment contributed to a substantial
degree.
Meaning of injury
The term ‘injury’ is generally interpreted in accordance with its ordinary everyday
meaning; that is, it includes all damage sustained to the body as a result of any sort
of trauma to the body including ‘mental’ injury. Apart from the ‘physical blow’ situ-
ation often associated with the concept of injury, conditions such as dermatitis,
hepatitis and viral infections have been deemed to be injuries in that they all involve
trauma to the body.
A good example of the broad view taken by the courts in relation to the meaning
of ‘injury’ for workers compensation purposes was a case decided by the High Court
of Australia in 1976. A worker had contracted viral meningeal-encephalitis and
claimed workers compensation on the basis that the illness was an injury. The High
Court decided that the illness was an injury within the ordinary meaning of the
word. In coming to that decision, the then Chief Justice, Sir Garfield Barwick, said:
The meningeal-encephalitis is neither idiopathic nor autogenous. It was
the result of the introduction into the employee’s body of a foreign body,
the virus. The internal physiological change in the form of a developing
meningeal-encephalitis was caused by the intruding virus. On this view this
morbid condition of the body was not itself the relevant injury but merely
the consequence of the introduction into the body from without of the
virus, which though microscopic and innominate, was none the less
substantial. This attack by, or reception of, the virus was the injury.2
Meaning of disease
In the case referred to above, the meaning of ‘disease’ was also canvassed. In
making the distinction between ‘injury’ and ‘disease’ Sir Garfield Barwick stated
that the word disease in its normal sense:
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… denotes a morbid condition of the body. It may be initiated by some

external cause or be idiopathic or autogenous. Quite clearly when such a
condition is idiopathic or autogenous, it will not qualify as an injury in the
normal use of language.3
Essentially, disease, for the purposes of workers compensation, has been widely
interpreted to cover a range of illnesses, such as heart disease, viral infections, cancer
and epilepsy. The list is not exhaustive. A definition of disease is generally included
in the workers compensation legislation of each state and territory and the
Commonwealth.
On 15 May 1992, the then Chief Judge of the Compensation Court of New
South Wales, McGrath J, gave judgment in a matter known only as A v R in which
he found, on the balance of probability, that the applicant in that case had dem-
onstrated that he acquired the HIV virus in the course of his employment as a
first-aid officer.4
Briefly, the facts were that the applicant was diagnosed as being a sufferer of
the disease of AIDS and he claimed that he acquired it by blood-to-blood infection
in the course of conducting his duties as a first-aid officer. He claimed that,
from time to time, he was required to treat open wounds which were bleeding
and that, at such times, he was open to infection by reason of the fact that he
was an inveterate nail biter who bit his nails down so far as to cause injury to his
nail bed and surrounding parts of his fingers, causing frequent bleeding from
those areas.
Depending on the definitions in the relevant workers compensation legislation,
there are conditions that can be both an injury and a disease. For the purposes of
workers compensation entitlements, it is necessary to establish not only that the
disease was contracted in the course of employment, but also that the employment
was a contributing factor in contracting the disease; with an injury, it is only neces-
sary to establish that it arose out of the employment or occurred in the course of
employment. Obviously, the latter phrase in relation to injury encompasses alterna-
tive criteria that must be established, and it is therefore only necessary for a worker
to establish one or the other.
ARISING OUT OF OR IN THE COURSE OF EMPLOYMENT

The interpretation given by the various courts in recent years as to what constitutes
‘arising out of or in the course of employment’ has widened considerably in that
the courts are accepting more and more activities as being work-related. As a general
rule, the phrase ‘arising out of employment’ will be established where a worker can
show ‘that the fact of his being employed in the particular job caused, or to some
material extent contributed to, the injury’.5 Equally, the phrase ‘in the course of
employment’ has been stated as meaning:
… where a worker, while not performing the actual duties of his
employment, was caused injury at a time and a place doing something
which might be regarded as reasonably incidental to, consequential upon or
ancillary to, his employment.6
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Obviously, in determining either issue, if it were in dispute, the courts would

have regard to the particular facts and circumstances of each case.
In most situations when a worker suffers injury at work there is no dispute that
he or she is engaged in the course of employment. Other situations are not so clear,
and generally require to be examined individually. As stated before, each situation
must always be considered in the light of its own particular facts and circumstances,
particularly when one has regard to the wide and variable interpretation given by
the courts in such matters. The more obvious examples are set out under the head-
ings that follow.
Travel to and from work

The workers compensation legislation has overturned the common-law principle
that a worker travelling to or from work is not normally within the course
of employment. The specific legislative provisions now state that travel between
the place of employment and place of abode is considered to be within the course
of employment. What is deemed to be ‘place of employment’ and ‘place of
abode’ is usually defined in each Act. ‘Journey claims’, as such claims are called, are
covered by the relevant provisions of the legislation and generally do so within
the context of defining the terms ‘place of abode’ and ‘place of employment’ — the
former term refers to the place where the worker resides for the purposes of travel-
ling to and from work, while the latter term refers to the place where the worker
undertakes his or her employment obligations. Problems can arise in establishing
entitlement where a worker ‘deviates’ during his or her usual journey to and
from work.
Injuries incurred during lunch periods or recognised rest periods

As a general rule, if a worker suffers an injury during a recognised lunch or rec-
reation period which occurs on the employer’s premises or in a situation which may
be said to be incidental to the worker’s employment, then the worker would be
entitled to claim workers compensation. In a decision given in 1962, the High
Court of Australia upheld a claim for workers compensation made by a worker who
had been injured playing cricket during the lunch break, even though the employer
had prohibited the playing of such games.
The employer had erected a sign prohibiting the playing of games in the lunch
hour, but had never bothered to enforce the rule and for some 2 years, during the
lunch break, workers had engaged in a variety of sports of which the employer was
aware. When a worker was injured, the employer denied workers compensation
payments on the basis that playing sport in the lunch period was not in the course
of employment. In its decision in favour of the worker, the High Court said:
… a worker who is having lunch on his employer’s premises with his
employer’s sanction is, save in exceptional cases, ‘doing something which he
was reasonably required, expected or authorised to do in order to carry out
his duties’ … if this is to be said about taking lunch, why should not it also
be said about taking a walk, dozing in the sun, or playing a game of table
tennis or cricket …7
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Injuries incurred while attending trade schools, seminars and so on

Workers who are required to attend a trade or training school as part of their
contract of employment and who are injured while attending or while travelling to
or from the school would clearly be in the course of employment. Equally, employ-
ees sent away on seminars, conventions, conferences and so on would normally be
said to be acting within the course of employment.
Injuries incurred as a result of being assaulted at work

If a worker is carrying out duties or activities related to his or her employment and
he or she is assaulted, the worker is clearly acting in the course of employment and
is entitled to workers compensation payments. Accordingly, a nurse or midwife who,
while carrying out his or her duties, is attacked and injured by a patient is clearly in
the course of employment. However, a worker who is injured on the employer’s
premises as a result of an assault by another person would not be entitled to claim
workers compensation unless that worker was carrying out duties or activities related
to his or her employment. An example of the latter situation occurred in the case of
Bill Williams Pty Ltd v Williams.8 The relevant facts of the matter are set out below.
Williams was the managing director of a company and on one occasion when he
was at work on the company’s premises he was approached by a man named O’Neill
who made allegations that Williams was having an affair with O’Neill’s wife. An
argument ensued between them and Williams assaulted O’Neill. O’Neill had a rifle
and threatened to shoot Williams. Williams ran out of the premises. O’Neill fol-
lowed and shot him in the back. Williams later claimed workers compensation
payments for the injuries received.
The court rejected his claim on the basis that while Williams was clearly within
the course of employment during the time he was on the employer’s premises, the
argument with O’Neill was unrelated to his employment and had interrupted the
course of employment.
Injuries incurred whilst participating in sporting activities generally

There can be no hard and fast rule in relation to this area. Many employers
actively encourage their employees to participate in competitive sport or in sporting
teams associated with the employer. As a general rule it could be said that an
employee who is participating in a sporting activity is not acting within the course
of his or her employment, even where the employer actively encourages such par-
ticipation. However, where an employee, as part of his or her contract of employ-
ment, is expected to participate in sporting activities or does so with the express
approval of the employer and is paid while doing so, then the employee could be
said to be acting in the course of his or her employment and be entitled to claim
workers compensation. Similarly, participation in social activities, work picnics and
the like must be considered on the facts of each case.
Defences to a claim for workers compensation

It is no defence to a claim for compensation for an employer to say that the worker
was the author of his or her own misfortune. It does not matter in workers
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compensation claims that the worker may have been negligent. It is, however, a
defence if the employer can show that the injury was caused by the worker’s own
serious and wilful misconduct.
Making a workers compensation claim

If in doubt, always seek legal advice as to your entitlement to workers compensa-
tion. If you are a member of the relevant union in your state or territory, they will
always provide you with advice and assist you with making a claim. The following
points should be borne in mind:
• Time limits for making a claim — different provisions apply in respect to the
giving of notice of injury or disease and, in some cases, the making of a claim
for compensation.
• Incapacity and the payment of benefits — workers compensation benefits will
be paid when the injury or disease sustained by a worker in relation to his or
her employment results in the worker’s incapacity for work. Incapacity for
work can be either total or partial and is deemed to arise when the injury or
disease prevents an employee from:
– performing the full range of his or her employment duties; or
– obtaining other employment.
• Total incapacity is where the injury or disease prevents the employee from
performing all of his or her pre-injury employment duties.
• Partial incapacity is where the injury or disease prevents the employee from
performing some, but not all, of his or her pre-injury employment duties.
For example, when a nurse suffers a work-related back injury, the nurse is
often told he or she can return to work as long as he or she performs only
‘light duties’, which usually means no heavy lifting or excessive bending.
Whether or not the employer can provide such work and the rate of pay the
nurse may be able to earn as a result of the partial incapacity is significant
for the purposes of determining the nurse’s workers compensation
entitlements.
• Workers compensation payments can be made on a weekly or lump sum
basis and may be made to either the worker or the dependants of a deceased
worker.
• Additional payments that may be made to cover costs arising from a workers
compensation injury will include such matters as:
– medical expenses, including artificial aids such as limb prosthesis, false teeth
and so on;
– alterations to the injured worker’s home necessitated by the long-term
effects of the injury, such as ramps or handrails;
– the cost of rehabilitation and/or the need to provide domestic assistance;
and
– funeral expenses.
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Some practical considerations and advice concerning

workers compensation
• Any injury suffered at work, no matter how slight it may appear, should
be recorded and reported. Even apparently minor injuries can give rise
to unforeseen consequences. The procedure for recording is a matter for
individual hospital policy. It may be an accident report book at local level
or an accident report form sent to central administration.
• Statistical reports of injuries received at the workplace should be used by the
employer as a guide in the implementation of occupational health and safety
measures at the workplace.
• Some work-related injuries, particularly back injuries, occur gradually over
a long period of time. Nurses are often inclined to treat mild back pain
themselves by staying home from work for one or two days. As most
employers do not require a medical certificate for up to 2 days’ sick leave, no
medical attention is sought. As a result, the leave taken is recorded as sick leave
and the nurse’s sick leave record is reduced. Accordingly, no report is given to
the employer of the work-related back pain and no record is made of that fact
on the nurse’s file. In due course the injury is diagnosed and long periods off
work and/or surgery are required. The question then arises as to how the
injury occurred and when it was reported. In summation:
– do not treat a work-related injury by yourself;
– report and record all instances of work-related pain — particularly back
pain;
– ensure that all time taken off with work-related injuries is claimed as
workers compensation leave and not sick leave. If sick leave is initially
debited for a workers compensation injury it should be re-credited by the
employer when the workers compensation is paid.
• On occasions a worker may be off work for many months with a workers
compensation injury. If there is no likelihood of the worker’s return to work
after a reasonable period of time, the employer may decide to terminate the
worker’s employment. Most employers wait until the expiration of the period
of full pay before making any decision in that regard. In some of the recent
legislative changes in this area, restrictions have been placed on the right of
the employer to terminate the employment of a worker following a workers
compensation injury.
• On occasions an employer will ask a worker to resign if it appears that
the worker is unlikely to return to work in the foreseeable future. As a rule,
a worker should not resign but wait for the employer to terminate the
employment.
• When recovering from a work-related injury a worker is often advised by his
or her medical practitioner that he or she is fit for ‘light duties’ which means
the worker is partially, but not fully, incapacitated. The worker knows that the
employer has no work which can be considered light duties. Nevertheless the
worker should present such a certificate to the employer. In some instances
206
the employer’s inability to provide light duties may mean that the worker is
deemed to be totally incapacitated.
• Termination of employment because of a workers compensation injury
will not terminate the worker’s entitlement to continue to receive workers
compensation payments. Such payments will continue as long as the incapacity
to work continues and as determined by the medical evidence.
If in any doubt concerning a workers compensation entitlement, always seek

advice from the appropriate organisation in your state or territory.
Safe system of work

In addition to an employer’s obligations under occupational health and safety leg-
islation, with its potential for criminal penalties, an employer may be found liable
to an employee for monetary damages where an employee could establish that he
or she suffered a work-related personal injury as a result of the employer failing to
provide a safe system of work.
An entitlement to bring such a claim is in addition to any claim for workers
compensation an employee may have for a work-related injury. The difference
between the two potential claims is that a claim for damages based on an unsafe
system of work requires the employee to prove to the requisite standard all of the
legal elements required to ground such a claim in civil negligence.
A claim for workers compensation is more straightforward. It requires a claimant
to establish he or she was an employee at the time of the injury and that the injury
arose out of or in the course of employment. Such a claim is often easier to establish
than one based on civil negligence.
There is nothing to preclude an employee bringing both a workers compensation
claim and a claim for damages based on an unsafe system of work allegation.
However, if both proceed and monies are paid under both claims, the money paid
in workers compensation is offset against any monies paid for personal injury
damages.
Any claim for personal injury damages based on an unsafe system of work would
need to be pursued as a claim in civil negligence by establishing the legal principles
discussed in Chapter 3. As well, such a claim would be subject to the threshold
requirement of having to show, as a result of the work-related injury arising from
the employer’s negligence, that the worker suffered a 15 percent whole person
impairment that can be medically established.
An unsafe system of work can take many forms. In the first instance it is neces-
sary to understand the nature of the duty of care owed by an employer to the
employees. This principle is precisely stated in the decision of the High Court of
Australia in Rae v Broken Hill Proprietary Co Ltd.9 The facts of the appeal do not
need to be stated. The relevant passage of the decision is as follows:
The question always is whether an employee’s injury has resulted from some
failure on the part of the employer to take reasonable care for the safety of
the former. Such a failure may be shown by establishing, in appropriate
cases, a failure to observe commonly recognised precautions or safeguards
207
or, in others, by showing that the performance of his work by an employee

has exposed him to risk of injury which might reasonably have been
foreseen and avoided.10
As far as nursing and midwifery staff are concerned, the situations that may give
rise to an allegation of an unsafe system of work and that may cause them to suffer
significant damage can vary from workplace to workplace. Some examples could
be:
1) failure to provide for the proper ‘trapping’ and control of anaesthetic gases in
operating theatres;
2) failure to properly earth and maintain all electrical equipment used by staff;
3) failure to provide proper instruction, lifting equipment or appropriate staff in
the lifting or care of patients; and
4) failure to reasonably and adequately protect staff against the transmission of
infectious diseases such as hepatitis.
The example given in item 3 above is probably the most contentious area as far
as injuries to nursing and midwifery staff are concerned. There is no doubt that
back injuries constitute a large percentage of injuries suffered by them in the course
of their employment. In most situations the person concerned will claim and be
paid workers compensation. It is arguable, in some instances, and depending on
the facts and circumstances, the nurse or midwife may also have the right to bring
an action in civil negligence alleging an unsafe system of work.
In determining what is a reasonable standard having regard to a safe system of
work, the following factors should be borne in mind:
• the degree of likelihood of harm occurring in relation to a particular procedure
or incident;
• the steps taken to reduce the likelihood of harm in relation to a particular
procedure or incident; for example, in the lifting of patients the following
points are worth noting:
– adequate and proper instructions for lifting patients;
– adequate lifting devices as circumstances warrant;
– working facilities built to accommodate difficulties in lifting; for example,
bathrooms may need structural alterations to allow patients to be lifted in
and out of the bath without undue difficulty;
– adequate instructions to staff about procedures to be followed if difficulties
arise; and
– adequate additional staff, such as wards people, available as circumstances
require;
• any failure on the part of the employer to take all reasonable steps to eliminate
the likelihood of the harm occurring;
• any failure on the part of the employee to take all reasonable steps to prevent
being injured.
208
Endnotes
1) Commonwealth: Insurance Contracts Act 5) Nunan v Cockatoo Docks (1941) 41 SR
1984 s 66; NSW: Employees Liability Act (NSW) 119 at 124.
1991 ss 3 and 5; NT: Law Reform 6) Hickox v Education Department [1974] VR
(Miscellaneous Provisions) Act 1984 s 22A; 426 at 430.
SA: Civil Liability Act 1936 s 59. 7) Commonwealth v Oliver (1962) 107 CLR
2) Favelle Mort v Murray (1976) 8 ALR 649 at 353 at 363.
652. 8) Bill Williams Pty Ltd v Williams (1972) 126
3) Ibid. CLR 146.
4) A v R (Compensation Court of New South 9) Rae v Broken Hill Proprietary Co Ltd (1957)
Wales, McGrath J, 15 May 1992, 97 CLR 419.
unreported). 10) Ibid, at 430.
209
Chapter 6
The administration of drugs
In 2009 the Australian Pharmaceutical Benefits Scheme (PBS), the means by which
the Australian Government subsidises prescription medication in Australia, was
costing the tax payer over $8 billion per year. However, this equates to just over 14
percent of total government expenditure on healthcare, and less than 8 percent of
the cost of the total health system.1 In addition, many medicines are purchased over
the counter without a prescription and these include analgesics (pain-killers), cough
medicine, vitamins and complementary medications. In Australia hospital admis-
sions associated with adverse drug events range from 5.6 percent in the general
population to 30.4 percent of admissions in the elderly, and 3.3 percent of the time
admissions are paediatric emergency department attendances reported to be associ-
ated with adverse drug events.2
The great majority of medications that nurses and midwives administer on a
day-to-day basis are considered to be, and are defined by legislation as, poisons.
That is, generally speaking, they are substances that, by their very nature, are inher-
ently dangerous to one’s health if not used appropriately. Accordingly, it is consid-
ered necessary to identify them and lay down clear provisions as to how such
substances may be obtained, the basis on which a person may have possession of
them, who may prescribe them, how they must be stored, and so on.
The Commonwealth, as well as each state and territory of Australia, has specific
legislation which covers the control and supply of poisons and therapeutic goods
in that state or territory.3 This is set out in Appendix A to this chapter.4 Amongst
other things, that legislation sets out the specific responsibilities of nurses and mid-
wives in relation to the various types of drugs that they have to deal with and
administer in their work. The possibility of making drug-related errors, and the
legal consequences that can flow from this, are such that nurses and midwives need
to be aware not only of specific legislative requirements that apply to them, but also
how to minimise the possibility of errors occurring.
The information contained in this chapter will be of value to registered nurses
and midwives and also enrolled nurses. In the past, only registered nurses and
midwives were allowed to administer medications against a prescription. However,
over the past 10 years new programs have been developed for enrolled nurses across
211
Australia to enable them to administer medications. At the time of writing all

enrolled nurses are presumed to be medication-endorsed under the new national
registration scheme. Enrolled nurses who are not medication-endorsed are expected
to advise the Nursing and Midwifery Board of Australia (NMBA) so that a notation
can be put against their registration to advise employers and the general public that
they are not able to administer medications. This notation provides protection not
only for the public, but also for the enrolled nurse, as it ensures they are not expected
to deliver care outside of their scope of practice. If an enrolled nurse who is not
medication-endorsed completes a required program of study they are able to apply
to the NMBA to have the notation lifted from their registration.5
The legislation that governs the management of medication has different titles in
the different jurisdictions and these are set out in Appendix A of this chapter. Not
only are there statutes that govern the control of drugs, there are very specific regu-
lations and orders that set out exactly how medications must be managed and the
degree of control to which specific medications and drugs are subject. The legisla-
tion embraces all conceivable types of poisons available, ranging from agricultural
poisons and domestic pesticides to drugs of addiction. The relevant legislation in
each state and territory is relatively similar in the way in which it classifies and
identifies poisons and therapeutic goods but there are differences in the detailed
provisions that apply in some areas. In addition, as part of these various statutes,
certain criminal offences are indicated where a person deals with certain poisons in
a manner contrary to the provisions, particularly the drugs of addiction. Criminal
charges in relation to well-publicised drug offences, such as possession or supply of
heroin or cocaine, arise under other legislation.
For the sake of clarity and because of varying legal requirements, the types of
poisons or drugs available are divided into various sections, or schedules, which are
determined by the Poisons Standard (currently Poisons Standard 2011) established
under paragraph 52D(2)(b) of the Therapeutic Goods Act 1989 (Cth). Such provi-
sions are then incorporated into the various statutes in each jurisdiction. For legal
definitions, it is still necessary to check with each relevant state or territory authority
but the Standard for the Uniform Scheduling of Medicines and Poisons No 1 (the
SUSMP 1) provides the template for each jurisdiction.6
The schedules of poisons are set out in the SUSMP 1 and a comprehensive list
of the poisons that are identified within each schedule follows. The information in
the SUSMP 1 points out that poisons are not scheduled on the basis of a universal
scale of toxicity. Although toxicity is one of the factors considered, and itself incor-
porates a complex set of factors, the decision to include a substance in a particular
schedule also takes into account many other criteria such as the purpose of use,
potential for abuse, safety in use and the need for the substance. The SUSMP 1
now lists poisons in nine schedules according to the degree of control recommended
to be exercised over their availability to the public. The types of poisons in each
schedule are set out in Table 6.1.
The specific schedules that are most relevant to nursing staff are those generally
identified as Schedule 4 substances and Schedule 8 substances. Schedule 4 sub-
stances are commonly referred to as ‘prescription only’ or restricted substances and
cover all drugs that are able and required to be provided on the prescription of
212
6 • The administration of drugs
Table 6.16
Schedules of poisons under SUSMP 1
Schedule 1. This Schedule is intentionally blank.
Schedule 2. Pharmacy Medicine — Substances, the safe use of which may require advice
from a pharmacist and which should be available from a pharmacy or, where
a pharmacy service is not available, from a licensed person.
Schedule 3. Pharmacist Only Medicine — Substances, the safe use of which requires
professional advice but which should be available to the public from a
pharmacist without a prescription.
Schedule 4. Prescription Only Medicine, or Prescription Animal Remedy — Substances,
the use or supply of which should be by or on the order of persons permitted
by state or territory legislation to prescribe and should be available from a
pharmacist on prescription.
Schedule 5. Caution — Substances with a low potential for causing harm, the extent of
which can be reduced through the use of appropriate packaging with simple
warnings and safety directions on the label.
Schedule 6. Poison — Substances with a moderate potential for causing harm, the extent
of which can be reduced through the use of distinctive packaging with strong
warnings and safety directions on the label.
Schedule 7. Dangerous Poison — Substances with a high potential for causing harm at low
exposure and which require special precautions during manufacture, handling
or use. These poisons should be available only to specialised or authorised
users who have the skills necessary to handle them safely. Special regulations
restricting their availability, possession, storage or use may apply.
Schedule 8. Controlled Drug — Substances which should be available for use but require
restriction of manufacture, supply, distribution, possession and use to reduce
abuse, misuse and physical or psychological dependence.
Schedule 9. Prohibited Substance — Substances which may be abused or misused, the
manufacture, possession, sale or use of which should be prohibited by law
except when required for medical or scientific research, or for analytical,
teaching or training purposes with approval of Commonwealth and/or state or
territory health authorities.
a medical practitioner, nurse practitioner, eligible midwife, dentist or veterinary

surgeon. Schedule 8 substances are called ‘controlled drugs’ and sometimes ‘drugs
of addiction’. Apart from the Schedule 8 drugs, there are few drugs that nurses or
midwives administer on a day-to-day basis that do not come within Schedule 4.
For example, such drugs as antibiotics, antihypertensives and anticoagulants clearly
fall into Schedule 4, as they can be obtained only on prescription.
In some jurisdictions certain drugs are declared to be Schedule 4 substances but
in terms of storage and security are required to be dealt with in the same manner
as Schedule 8 substances. As an example, the substances set out in Appendix D
of the Poisons and Therapeutic Goods Regulation 2008 (NSW) include barbiturates,
benzodiazepines and pseudoephedrine. While Schedule 8 substances are commonly
referred to as controlled drugs, in New South Wales they are known as drugs
of addiction, (sometimes) in Tasmania as narcotic substances, and in Western
Australia, drugs of dependence. Whatever the minor variation in titles, the
type of drugs that come within this Schedule are usually the narcotic analgesics
213
such as opium, opium derivatives (morphine) and synthetic opium derivatives

(pethidine).
Some substances that nurses and midwives administer from time to time are not
required to be provided on prescription. They are often referred to as ‘nurse- or
midwife-initiated medications’ and can be administered by nursing or midwifery
staff without a medical officer’s authority or prescription. These medications usually
include substances such as antacids, aperients and paracetamol. Nurses and mid-
wives should not automatically assume their right to administer such substances
without reference, and should do so only in accordance with clearly written guide-
lines drawn up by the hospital or health authority.7
The specific list of drugs under the various schedules changes fairly frequently as
new drugs are developed and introduced. It is therefore essential that nurses and
midwives be aware of this aspect and that any relevant addition or change to the
list of drugs in Schedule 4 or Schedule 8 be communicated to them. Hospitals are
automatically notified of relevant changes to the poisons legislation by the state or
territory health departments, generally by way of departmental circulars. To the
extent that they are relevant, such circulars should be acted upon where necessary
and distributed to all staff concerned.
Examining the relevant Regulations

As we have already indicated, the various state and territory Acts and the division
of the schedules are essentially similar in fundamental layout and content and it is
not intended to incorporate the precise details of each state or territory’s legislative
provisions in this text. The Regulations that accompany each of the Acts, and which
are extremely important to nurses and midwives, vary in the precise words used
concerning requirements as to the authority to prescribe, possess, control, supply,
store and so on, but not to any significant degree. Some Regulations are more precise
and detailed than others, and nurses in each state and territory should read their
relevant Regulations carefully. When doing so, it is important to note the distinc-
tion between the words ‘prescribe’, ‘dispense’ and ‘administer’ — that is, in general
terms, medical and nurse practitioners and eligible midwives (and others) prescribe,
pharmacists dispense and nurses and midwives (and others) administer. The degree
of commonality in the various state and territory Regulations can best be sum-
marised as follows.
Schedule 4: restricted substances

As a general rule, only medical and nurse practitioners, eligible midwives, dentists
and veterinary surgeons can issue a prescription for a restricted substance. Prescrip-
tions are required to contain specific details, such as the name and address of the
patient, date, drug and dosage. Some states and territories require that the prescriber
shall write ‘legibly’ although this may be overcome with electronic prescribing. In
an emergency, a medical practitioner can direct the dispensing of a restricted sub-
stance orally, including by telephone, subject to certain requirements.
Except in hospitals, no person other than a pharmacist or a pharmacist’s assistant
can dispense a prescription for a restricted substance. In hospitals where
214
a pharmacist is employed, he or she is responsible for the storage and recording of

restricted substances. In hospitals where no pharmacist is employed, the director of
nursing or, in his or her absence, the person acting in the position, or the medical
superintendent, has the responsibility for such storage and recording. More often
than not, in remote areas, such a task falls to the registered nurse in charge because
there is no medical practitioner on the premises.8 Whoever is responsible for the
storage and supply of restricted substances must not issue such a substance from
hospital stocks unless he or she has a proper prescription or the appropriate ward
requisition slip from the nurse in charge of the ward.
Restricted substances can be administered in hospitals only on the written author-
ity of a medical or nurse practitioner or an eligible midwife, except in the case of
an ‘emergency’, when the medical or nurse practitioner or eligible midwife may
verbally authorise the administration of a restricted substance. If the medical or
nurse practitioner or eligible midwife verbally authorises the administration of such
a substance he or she must confirm that verbal authority generally within 24 to 48
hours by writing in the patient’s notes.
Schedule 8: controlled substances

Certain persons are authorised to be in possession of and supply certain drugs
of addiction for the purposes of their profession or employment. Such persons
include:
• a pharmacist;
• a medical practitioner;
• the director of nursing of a public hospital where no pharmacist is employed,
or, in the pharmacist’s absence, the person acting in the position;
• the nurse or midwife in charge of a ward in a public hospital;
• a nurse or midwife employed in a community health centre;
• a nurse employed in air ambulance duties; or
• a director of nursing and/or midwifery of a private hospital or nursing
home.
It is important to remember that where a nurse or midwife, or any other person

for that matter, is given authority to be ‘in possession and supply’ of drugs of addic-
tion, provision is also made for such authority to be withdrawn if it is breached or
exceeded.
Only a medical or nurse practitioner, eligible midwife, dentist or veterinary
surgeon can issue a prescription for a drug of addiction. The requirements for such
prescriptions are similar to those for restricted substances. In an emergency a
medical or nurse practitioner or eligible midwife can direct the dispensing of a drug
of addiction orally, including by telephone, subject to certain requirements. Except
in hospitals, no person other than a pharmacist or a pharmacist’s assistant can dis-
pense a prescription for a Schedule 8 drug.
The nurse or midwife in charge of a ward is required to keep all drugs of addic-
tion stored separately from other goods, with the exception of certain restricted
215
substances. The storage area should be a separate receptacle or cupboard securely

fixed to the premises and it should be kept securely locked when not in use.
Any person, including a nurse or midwife, authorised to be in possession of and
supply drugs of addiction is to keep the safe or cupboard in which they are stored
securely locked and is to keep the key on his or her person. If the authorised person
is absent from the premises the key to the cupboard or safe should not be left lying
around.
Approval can be given by state or territory health authorities for drugs of addic-
tion to be kept in approved first-aid kits for use in an emergency in isolated locali-
ties, in an occupational health centre, in search and rescue operations or in other
approved situations. In such approved situations a register must be kept.
The requirements for the storage of drugs in hospitals and health services are all
similar to those set out in the South Australian Department of Health’s Code of
Practice for the Storage and Transport of Drugs of Dependence, the relevant sections
of which are set out below in Box 6.1.9
Ward registers or drugs books

There is also a requirement with controlled substances that the nurse in charge of
a hospital ward will keep a register of controlled drugs (a ‘ward register’) in that
ward. For example, under section 101(1) of the Health (Drugs and Poisons) Regula-
tion 1996 (Qld), the ward drugs book is required to record information about
obtaining controlled drugs into the unit from the central storage point and admin-
istering controlled drugs to persons in the unit. The person in charge is expected
to ensure that the ward drugs book is bound and sequentially numbered, relates
only to one class of controlled drug, has a heading describing the class of controlled
drug and records in the measurement unit the quantities of the drug involved in a
transaction.
If any drug of addiction is lost, destroyed or rendered unusable, a person autho-
rised to possess such drugs must be notified. In the case of a drug of addiction that
is unusable and has to be destroyed, the destruction of the drug must be undertaken
by the pharmacist, director of nursing or medical superintendent in the presence
of another person and a record made in the register of such loss or destruction.
Where an ampoule of a drug of addiction is only ‘part used’ and the remainder
discarded, the entry in the register should record that fact. For example, if a patient
is ordered 75 mg of pethidine and the only ampoules available are 100 mg ampoules,
the register should record that the patient received 75 mg and the remaining 25 mg
was destroyed on the basis that it had been rendered unusable.
In some jurisdictions there are specific requirements concerning the responsibili-
ties of the nurse in charge of a private hospital or nursing home. These do not differ
in any significant degree from the requirements already mentioned, except to the
extent of limiting the quantities of drugs of addiction that person is authorised to
possess.
The relevant Regulations usually specify what a nurse should do if there is a
discrepancy or there are missing drugs. This usually requires notification to a rele-
vant person or body. The process for such notification should also be spelled out in
the employer’s policy and procedure manual.
216
BOX 6.1
SOUTH AUSTRALIA DEPARTMENT OF HEALTH’S CODE OF
PRACTICE FOR THE STORAGE AND TRANSPORT OF DRUGS
OF DEPENDENCE
Health service and surgery
4) All drugs of dependence stored in a health service, ward, day surgery unit, or
medical, dental or veterinary surgery, must be placed in a securely locked storage
cabinet that meets or exceeds the following requirements:
4.1) Where the quantity of drugs stored is not more than 15 doses—
4.1.1) made of 15mm thick hardwood; and
4.1.2) fitted with a 5 lever key lock or equivalent locking mechanism; and
4.1.3) securely fixed to the wall or floor; or
4.2) where the quantity of drugs stored is more than 15 doses and the immediate
area in which the cabinet is situated is supervised at all times, the
requirements specified in sub-paragraphs 4.1.1 to 4.1.3 above; or
4.3) where the quantity of drugs stored is more than 15 doses and the immediate
area in which the cabinet is situated is not supervised at all times (eg nights)
the requirements of Australia/New Zealand Standard for Safes and
Strongrooms (AS/NZS 3809:1998) Resistance Grade 1; or
4.4) as approved by the Director, Pharmaceutical Services.
Restricted access
5) No person other than an authorised person shall have a key to the cabinet.
5.1) At all times, while on duty, the authorised person for the time being in
charge of a ward, medical, dental or veterinary surgery, day surgery unit or
nursing home must keep the key to the cabinet in his or her control and
possession.
5.2) Where the key is a combination, PIN or password it must not be divulged to
any unauthorised person. Combinations and passwords must be changed at
regular intervals and de-activated when a person having knowledge of the
combination or password ceases employment at the hospital, surgery or
nursing home.
5.3) No person other than an authorised person shall lock or unlock the cabinet
or remove or add to or in any way interfere with drugs in the cabinet.
5.4) The cabinet must only be unlocked for the purposes of:
5.4.1) the storage of drugs;
5.4.2) supply, administration or destruction of a drug; or
5.4.3) the examination and counting of drugs for audit purposes.
5.5) The cabinet must be re-locked immediately after use.
217
Problem areas with drugs

Although a sound knowledge of the relevant legislation relating to drugs and poisons
is essential for nurses and midwives, what is equally as important is an awareness
of the problem areas in relation to drugs and how to avoid and/or deal with them.
Mistakes can and do occur and it is unlikely that any system devised will ever
entirely eliminate the probability of drug-related errors occurring in the future.
Hospital administrators, medical practitioners, nurses and midwives should recog-
nise their respective responsibilities in this area and take steps to minimise the risk
of errors occurring and, when it does, minimise the damage that flows from it —
the law would expect such a standard to be reasonable, having regard to the clear
duty of care that is owed to the patient.
The Australian Commission on Safety and Quality in Health Care has identified
medication safety as one of its priorities. Reducing error and harm from medicines
through safe and quality use of medicines is identified as an important element of
the work to achieve the objective of leading and coordinating national safety and
quality improvements in healthcare.
The aim of the Medication Safety Program is to improve the safety of medication
usage in Australia.10 The environment in which medicines are regulated, prescribed,
supplied, administered and monitored in Australia is complex but the Commission
has chosen to focus its efforts in five areas:
1) standardising and improving systems (see medication charts and other
standardisations, and tools for systems improvement);11
2) reducing practice gaps;12
3) employing continuity in managing medicines (see medication
reconciliation);13
4) using technology (see Safety in E-health);14
5) advocating medication safety and quality by working with the National
Medicines Policy Executive and other organisations.
One of the major changes has been the introduction of a National Inpatient
Medication Chart. Since 2006 a number of charts have been developed for national
usage, including charts for acute care, long stay in acute care and paediatric charts;
the most recent project relates to charts for Residential Aged Care Facilities. Impor-
tantly there is also a list of national terminology, abbreviations and symbols.15 All
healthcare professionals need to be familiar with these standardised terms as their
use will reduce the risk of error significantly.
Administrative considerations
Most hospitals and some other health organisations have a permanent drug com-
mittee made up of relevant personnel to formulate specific policy in relation to drug
control and administration. Some hospitals and health centres are too small to
warrant such a committee. Nevertheless, whatever situation prevails, hospital and
health administrators should lay down firm and clear policies for employees con-
cerning drug administration. The policies should:
218
1) Ensure that the relevant legislative provisions are implemented and adhered to.
2) Ensure that all staff concerned are advised of any relevant changes to the
legislation which may occur from time to time. This can be easily achieved
by bringing such changes to the attention of the staff through standard
communication strategies.
3) Ensure that staff are informed and instructed about the use, requirements for
handling, storage, contraindications and so on, of new drugs.
4) Ensure that policies exist for contentious issues that arise; for example:
a) legibility of medication orders;
b) procedures to be followed by staff in the making and taking of verbal
medication orders, especially in an emergency.
5) Specify checking procedures for drugs of addiction and certain restricted
substances, such as the frequency of checking by visually counting each
substance, and which staff do the checking.
6) Identify procedures that should be followed if medication orders are to be
transcribed.
7) Clarify what medications, if any, outside Schedule 4 and Schedule 8 substances,
can be given by nursing and midwifery staff without a medical officer’s authority
or prescription; for example, such substances as paracetamol on the basis of
what is commonly referred to as ‘nurse- or midwife-initiated medications’.
8) Where appropriate, determine standard medication protocols, commonly
referred to as Standing Orders, able to be followed by nursing and midwifery
staff in emergency situations or in areas such as obstetric delivery wards,
where many organisations have a standard medication protocol for routine
admissions.
Clinical considerations
In the day-to-day task of administering medications, nurses and midwives should
bear the following 12 considerations carefully in mind to help reduce the possibility
of errors occurring.
1) The guiding principle behind the administration of medication is — if in any
doubt, question and clarify with the prescribing practitioner concerned. A
useful maxim is often described as ‘The Five Rights’ of medication safety: the
right patient should receive the right dose of the right drug via the right route
at the right time.
2) Read medication sheets carefully. If the handwriting is illegible, steps should
be taken to have it clarified and, if need be, rewritten before the drug is
administered. This very real problem can to some extent be overcome if the
hospital administration rigidly adheres to the policy of legibility in the writing
up of prescriptions and medication sheets. Also, if a nurse or midwife is
present at the time the medication sheet is written up, they should ensure that
the entry is legible and, if not, have it clarified immediately.
3) Check the labelling of the drug carefully. If it is an ampoule or tablet in a
blister pack, check the labelling on the ampoule or blister, not the box or
container it is in.
219
4) Leave medications in the packaging they arrive in from the pharmacy — don’t
transfer them to another container. Most of the Regulations make provision
for such a situation.
5) Do not transcribe a patient’s medication orders from his or her medication
sheet into any other part of the patient’s notes or other documents unless
absolutely unavoidable. This eliminates the risk of transcription errors and
the possibility that some other person may give a drug to a patient based on
the transcribed error. Transcribing medication orders is not against the law as
such, but it has become such an important issue for healthcare staff because
of the great danger of errors arising in such a practice. Therefore it is
essential that, in whatever system is devised in relation to medication, the
necessity to transcribe such orders is eliminated or reduced to an absolute
minimum.
6) If it is necessary, in an emergency situation, to take a drug order over the
telephone, the following six steps should be observed:
a) Obtain the patient’s notes if possible.
b) Ask the prescribing practitioner to repeat the order at least once — more if
it is unclear.
c) Repeat the order back to the prescribing practitioner.
d) If a second nurse or midwife is present and available, have them listen to
the order as a second check.
e) Make an immediate entry in the patient’s notes (not on a scrap of paper)
recording the date, time, drug, amount, number of dosages and so on, and
sign the entry. Have the second nurse or midwife, if available, countersign
the entry. A problem that sometimes arises here is where to make the entry
in the patient’s notes; that is, in the medication sheet or in the body of the
patient’s notes. Unless contraindicated by hospital policy, there is no legal
reason why the entry cannot be made on the medication sheet. It would
certainly seem the most sensible thing to do, particularly as the prescribing
practitioner has to countersign and confirm the order generally within 24 to
48 hours. Some hospitals take the view that the patient’s medication sheet
constitutes a hospital prescription form and as nurses and midwives in
general (unless endorsed to prescribe as nurse practitioners or eligible
midwives) cannot prescribe drugs they cannot write on the medication
sheet. Whichever view is taken, it is more important to make the entry
directly into the patient’s notes and that the hospital administration make
a clear policy on such a matter, which it then communicates to the staff
concerned.
f ) Appropriate steps should be taken to ensure that the prescriber confirms the
verbal order in writing in the patient’s notes within a specified time. In
most states and territories the Regulations specify the time, which usually
ranges from 24 to 48 hours.
7) Registered nurses and midwives are presumed to have specific knowledge and
expertise in relation to drugs, which they acquire as part of their training and
education. That knowledge and expertise should cause them to question
220
medication orders carefully in certain situations rather than blindly follow

instructions; for example:
a) if a dosage seems excessive in all the circumstances;
b) if the drug seems inappropriate having regard to known contraindications,
drug interactions, side effects or allergies;
c) if the drug is one they have not encountered before.
8) If, after carefully checking the drug and dosage with the patient’s medical
practitioner, the nurse or midwife is still concerned, he or she should be able
to communicate that concern to a person in authority for further checking.
That may not be possible in isolated situations, but in most hospitals a system
to deal with such concerns should be devised.
9) Whatever procedure for further checking does or does not exist, any query
raised by a nurse or midwife with the prescribing practitioner concerning
the suitability or dosage of a particular drug ordered for a patient should be
documented immediately by the nurse or midwife in the patient’s record. In
making such an entry, care should be taken that it is factual and objective.
For example, assume that the prescribing practitioner has prescribed an
intravenous dose of 0.5 mg of digoxin for a patient. The registered nurse
on duty feels that such a dose administered intravenously is excessive in the
circumstances and wishes to check it with the prescribing doctor. In doing
so, it is suggested that the following entry may appear in the patient’s
notes:
15.5.10: 14.00 Contacted Dr Brown concerning his order of 0.5 mg of
digoxin IV. Dr Brown directed that the order be amended to 0.05 mg of
digoxin IV. Medication sheet amended accordingly. P Smith RN.
OR
15.5.10: 14.00 Contacted Dr Brown concerning his order of 0.5 mg of
digoxin IV. Dr Brown confirmed order. P Smith RN.
If the second example is the outcome and the nurse is still concerned, contact
should be made with a person in authority, if such a system has been devised. If it
has, the following entries may then appear:
15.5.10: 14.15 Contacted Dr Jones concerning Dr Brown’s order of 0.5 mg
of digoxin IV.
14.30 Received a telephone order from Dr Jones to change the order
to read 0.05 mg of digoxin IV. Medication sheet amended accordingly.
P Smith RN.
In the event that Dr Jones confirms Dr Brown’s order, the following entry may
appear instead of the last entry above:
14.30 Dr Jones telephoned and stated that he had discussed the order of
0.5 mg of digoxin IV with Dr Brown and he confirmed Dr Brown’s order.
P Smith RN.
221
10) Registered nurses and midwives should not be required to administer

complicated drug regimes in specialised or high-dependency areas, unless they
are assessed as competent to do so. This is particularly so with children where
drug dosages are required to be fractionally precise and the margin for error
is extremely small.
11) Where certain drugs are required to be checked prior to administration, they
should be checked by two people. In situations where nurses or midwives
work alone or in isolation this is often not possible. This problem frequently
occurs with community nurses and midwives who are required to administer
medications in the home. The drawing up of insulin for diabetic patients is
a good example. In such situations the nurse or midwife concerned has no
alternative but to administer the drug after carefully checking it alone.
However, the patient is often highly knowledgeable about their own illness
and regime, and if they are able to check and assist, it is always useful and
instructive to involve them.
12) There are also instances where a community nurse is required to visit a
patient in the home on a weekly basis. At that visit the nurse leaves
prescribed medications in a ‘dosette’ box for the patient to self-administer at
set times during the week. When that situation arises, the nurse should take
all reasonable steps to ensure the medications are correctly administered
— such as careful explanations and, if need be, written instructions to the
patient and/or relatives as to the time and method such medications are to be
taken, as well as any other relevant instructions. Where there is a language
barrier between the nurse and patient, it may be necessary to arrange for an
interpreter to be present. If that is not possible, perhaps the nurse can arrange
to have the instructions translated in writing for the patient.
Endorsements for medication administration under the new

national registration scheme
Under the new national registration scheme, there is provision under section 94(1)
of the Health Practitioner Regulation National Law Act 2009 (Qld) for a National
Board (in this case the NMBA), to endorse the registration of a registered healthcare
practitioner (in this case either a nurse or midwife) as being qualified to administer,
obtain, possess, prescribe, sell, supply or use a scheduled medicine or class of sched-
uled medicines if the registered nurse or midwife:
a) holds either of the following qualifications relevant to the endorsement —
i) an approved qualification;
ii) another qualification that, in the Board’s opinion, is substantially
equivalent to, or based on similar competencies to, an approved
qualification; and
b) complies with any approved registration standard relevant to the
endorsement.16
These endorsements will be discussed in detail in Chapter 8, but suffice it to say
here that nurse practitioners are specifically endorsed under section 95; remote and
222
isolated practice registered nurses in Queensland have limited endorsement under

section 94(1) (although this limited and specific endorsement will be reviewed to
be more representative of the work of registered nurses at the earliest opportunity);
and eligible midwives (once they are notated as such under s 38(2)) will also be
endorsed for their scope of practice under section 94(1).
Criminal and professional issues relating to the administration

of drugs
It is not unknown for a nurse or midwife to have a personal drug addiction problem.
Nurses and midwives are often able to maintain such a habit because of their relatively
easy access to drugs generally and, as registered nurses and midwives, to drugs of
addiction in particular. The provisions of the various Poisons Acts and Regulations
authorise registered nurses and midwives to be ‘in possession of and supply certain
drugs of addiction’. Such authority arises when they become registered and is gener-
ally symbolised by the possession of keys to the cupboard where the drugs are kept.
If this authority to possess and supply drugs is breached by self-administration,
or by supplying or administering to another person other than a patient, the author-
ity can clearly be withdrawn. Apart from anything else, such an action also consti-
tutes a criminal offence under the provisions of the poisons or crimes legislation of
each state and territory.
Should a registered nurse or midwife be found guilty (convicted) of such an
offence, he or she will invariably be required to appear before the relevant panel or
responsible tribunal described in Part 8 of the Health Practitioner Regulation National
Law Act 2009 (Qld) in the appropriate state or territory. The powers under the
Health Practitioner Regulation National Law Act 2009 (Qld) include the power to
remove a nurse’s name from the register, subject to certain provisions, thereby
effectively depriving the nurse from pursuing employment in his or her profession
or placing conditions on the nurse’s right to practise. It is not uncommon for
registered nurses to have their registration cancelled or suspended for varying
periods of time as a result of convictions arising from drug offences related to their
employment.17
CONCLUSION
The rules governing medication administration and management are changing
rapidly at present, particularly with the changes to national registration and the
advent of electronic prescribing. Nurses and midwives need to follow local policy
and national developments closely.
Endnotes
Note: All links given below were last accessed on http://www.oecd.org/document/16/0,3746,
20 January 2012. en_2649_37407_2085200_1_1_1_37407,00.
1) Organisation for Economic Cooperation and html.
Development Health Data: Statistics and 2) Easton K, Morgan T and Williamson M,
Indicators for 30 countries, OECD, 2011, Medication Safety in the Community: A Review
223
of the Literature, National Prescribing Service, 11) ACSQHC, National Inpatient Medication
Sydney, 2009. Chart, 2009, http://www.safetyandquality.gov.
3) Roughhead L and Semple S, Literature au/internet/safety/publishing.nsf/Content/
Review: Medication Safety in Acute Care in NIMC_001; and ACSQHC, Tools for Systems
Australia, University of South Australia, Improvement, 2008, http://www.health.gov.au/
Adelaide, 2008. internet/safety/publishing.nsf/Content/
4) See Appendix A below. NIMC_008_Tools.
5) Enrolled nurses and medicine administration: 12) ACSQHC, Reducing Gaps in Practice, 2010,
Explanatory notes and FAQs, fact sheet, http://www.safetyandquality.gov.au/internet/
NMBA website, http://www. safety/publishing.nsf/Content/
nursingmidwiferyboard.gov.au/FAQ-and-Fact- reducing-gaps-in-practice.
Sheets.aspx. 13) ACSQHC, Assuring Medication Accuracy at
6) Poisons Standard 2011 (please note that Transitions of Care: Medication Reconciliation,
amendments are made to the Standard 2012, http://www.health.gov.au/internet/
throughout the year, therefore the website safety/publishing.nsf/Content/
needs checking regularly for currency if PriorityProgram-06_MedRecon.
you require accurate information about a 14) ACSQHC, Guide to Safe Electronic
schedule), http://www.comlaw.gov.au/Details/ Medication Management (EMM) in
F2011L01612. Hospitals, 2012, http://www.safetyandquality.
7) Commonwealth Department of Health and gov.au/internet/safety/publishing.nsf/
Ageing, Guiding principles for medication Content/PriorityProgram-08_
management in the community: Guiding ePrescribing2.
Principle 10: Nurse-initiated non-prescription 15) ACSQHC, National Terminology,
medications, 2006, http://www.health.gov.au/ Abbreviations and Symbols to be Used in the
internet/main/publishing.nsf/Content/ Prescribing and Administering of Medicines in
nmp-guide-medmgt-jul06-contents~nmp- Australian Hospitals, 2010, http://www.
guide-medmgt-jul06-guidepr10. safetyandquality.gov.au/internet/safety/
8) See, for example, Northern Territory publishing.nsf/Content/NIMC_001_
Government, Remote Health Atlas, section NTAS.
on pharmacy: Chapter 16, 2012, http: 16) Health Practitioner Regulation National Law
//www.health.nt.gov.au/Remote_Health_ Act 2009 (Qld), section 94(1), http://www.
Atlas/Contents/Pharmacy/index. ahpra.gov.au/Legislation-and-Publications/
aspx. Legislation.aspx.
9) South Australia Department of Health, 17) Although the legislation on which this
Code of Practice for the Storage and Transport textbook is based has now been superseded,
of Drugs of Dependence, 2000, http: the Professional Conduct Casebook (2010)
//www.dassa.sa.gov.au/webdata/resources/ commissioned by the (then) NSW Nurses
files/CS_ActCode_DOD_storage_trans. and Midwives Board, and co-authored by
pdf. Adrian A and Chiarella M, provides a range
10) Australian Commission on Safety and Quality of case law relating to drug misuse that is
in Health Care (ACSQHC), Medication still relevant for nurses today. Order forms
Safety, 2010, http://www.safetyandquality.gov. can be downloaded from http://www.nmb.
au/internet/safety/publishing.nsf/Content/ nsw.gov.au/professional-conduct-books/
PriorityProgram-06. default.aspx.
Appendix A: List of statutes and regulations governing medications

in Australia
Narcotic Drugs Act 1967 (Cth)
Therapeutic Goods Act 1989 (Cth)
Therapeutic Goods Amendment Act (No 1) 2006 (Cth)
Therapeutic Goods (Charges) Act 1989 (Cth)
224
Therapeutic Goods Regulations 1990 (Cth)

Dangerous Substances Act 2004 (ACT)
Drugs of Dependence Act 1989 (ACT)
Medicines, Poisons and Therapeutic Goods Act 2008 (ACT)
Medicines, Poisons and Therapeutic Goods Regulation 2008 (ACT)
Drug and Alcohol Treatment Act 2007 (NSW)
Drug Court Act 1998 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Poisons and Therapeutic Goods Act 1966 (NSW)
Poisons and Therapeutic Goods Regulation 2008 (NSW)
Misuse of Drugs Act 1990 (NT)
Misuse of Drugs Regulations 1990 (NT)
Poisons and Dangerous Drugs Act 1983 (NT)
Poisons and Dangerous Drugs Regulations 2004 (NT)
Therapeutic Goods and Cosmetics Act 1986 (NT)
Drug Court Act 2000 (Qld)
Drug Court Regulation 2006 (Qld)
Drugs Misuse Act 1986 (Qld)
Drugs Misuse Regulation 1987 (Qld)
Health Act 1937 (Qld)
Health (Drugs and Poisons) Regulation 1996 (Qld)
Health Regulation 1996 (Qld)
Controlled Substances Act 1984 (SA)
Controlled Substances (Poisons) Regulations 2011 (SA)
Dangerous Substances Regulations 2002 (SA)
Health Care Act 2008 (SA)
Misuse of Drugs Act 2001 (Tas)
Poisons Act 1971 (Tas)
Poisons (Declared Restricted Substances) Order 1990 (Tas)
Poisons (Declared Restricted Substances) Order 1998 (Tas)
Poisons (Declared Restricted Substances) Order (No 2) 1998 (Tas)
Poisons (Drugs Of Dependence) Order 2009 (Tas)
Poisons (Exempted Public Institutions) Order 2006 (Tas)
Poisons (Exempted Public Institutions) Order 2010 (Tas)
Poisons List Order 2001 (Tas)
Poisons (Midwifery Substances) Order 2011 (Tas)
Poisons (Notifiable Restricted Substances) Order 2009 (Tas)
Poisons (Prescribed Periods) Order 2009 (Tas)
Poisons (Prohibited Substances) Amendment Order 2005 (Tas)
Poisons (Public Institutions) Order 2000 (Tas)
Poisons Regulations 2008 (Tas)
Poisons (Specified Substances) Order 2009 (Tas)
225
Therapeutic Goods Act 2001 (Tas)

Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Drugs, Poisons and Controlled Substances (Commonwealth Standard) Regulations
2001 (Vic)
Drugs, Poisons and Controlled Substances Regulations 2006 (Vic)
Therapeutic Goods (Victoria) Act 2010 (Vic)
Drugs of Addiction Notification Regulations 1980 (WA)
Poisons Act 1964 (WA)
Poisons Regulations 1965 (WA)
226
Chapter 7
Report writing
Confidentiality of and access to patient records (including
e-records, incident reporting and open disclosure)
Report writing
The writing of patient reports is an integral part of a nurse’s work. The patient’s
records, particularly the written reports by healthcare personnel that are incorpo-
rated into the record, should constitute an ongoing account of the patient’s health-
care experience. The written reports should provide an assessment of the patient’s
progress for the healthcare professionals concerned and, on the patient’s transition
to their next stage of treatment, provide a record of treatment given, progress made
and a history for future consultation as required. In addition, a patient’s healthcare
history and the accompanying records are used for teaching, quality and research
purposes. From time to time, a patient’s healthcare records will be required as evi-
dence in court, although it is important to stress that this is not the most important
reason for writing good healthcare records. However, when that situation arises, the
relevant health authority or the individual medical practitioner is served with a
subpoena requiring them to produce the relevant records. A patient’s records can
be used in civil and criminal proceedings and in coronial hearings.
In civil proceedings against healthcare organisations or providers, a patient’s
record is often used as evidence to support an allegation that a certain treatment
was wrongly given or that there was a failure to give a particular treatment. The
patient’s record can also be used as supporting evidence of other matters that may
be in dispute in civil proceedings; for example, that a particular injury occurred as
a result of an accident and the circumstances in which it was alleged by the patient
to have occurred.
In criminal proceedings, a patient’s record can be used as evidence that an assault
and/or injury actually happened and to show the nature and extent of the injury.
For example, in relation to a charge of sexual assault, it may be that the first place
the victim presented for help was the emergency department of a hospital. On
arrival the victim would invariably give an account of events leading up to his or
her presence at the hospital. In such a situation, the healthcare professional’s record
of the words used in relation to the complaint made and the injuries sustained may
become important evidence in the criminal charge that may well follow.
227
In coronial hearings, the purpose of the inquiry is to determine the nature and
cause of death where the legislation requires that a coronial hearing is conducted
to make such a determination (see Chapter 9). Here the records may be used to
track a person’s deterioration, to identify whether any errors or adverse events
occurred during the patient’s stay, or to ascertain the condition of the person when
they were first (and possibly subsequently) seen by the healthcare professional.
For whatever purpose a patient’s records may be required in legal proceedings,
such records, including the nursing records, will be subject to close and careful
scrutiny. It is important, therefore, that these records meet the standard expected
of them, having regard to the purpose for which patients’ records are used. If the
records are an accurate and factual account of good patient care, they will provide
valuable assistance in a court of law.
Relevant considerations in writing reports

There is currently no specified format or outline for proper report writing. There
are a number of different techniques or models of documentation which include:
progress notes; various types of charting by exception, such as documentation of
variance, and charting of clinical incidents; problem-oriented medical records;
and more standardised formats, such as clinical or critical pathways, clinical algo-
rithms and pre-designed clinical care plans, which are becoming more prevalent
with computerised records. Although many organisations still use handwritten
records, computerised systems are also reasonably commonplace in our healthcare
system, with some organisations using a combination of both. Electronic health
records, or e-records as they are known, are explored in more detail later in this
chapter.
Certain points are common to all forms of records and should always be borne
in mind. These can best be summarised as follows:
• No entry concerning the patient’s treatment should be made in a patient’s
record on behalf of another nurse. Examples of this have unfortunately arisen,
particularly in relation to fluid balance charts.
• Reports should be accurate, brief and complete. Accuracy is obviously essential
and it is important to distinguish between what is personally observed and
what is related as part of a patient’s complaint of illness or injury; for example,
the difference in the record between writing ‘patient assaulted by two men’ and
‘patient reported that he had been assaulted by two men’. Unless the assault
was actually witnessed, the patient’s complaint of injury is clearly hearsay
evidence and must be reported as such. ‘Brief and complete’ may sound like a
contradiction in terms, but primarily it is important to avoid unnecessary
verbosity. As part of ensuring the reports are complete, reference should always
be made where a patient refuses any treatment or medication or acts in a
manner contrary to healthcare advice. For example, it is a patient’s right to
refuse their medication, as was discussed in Chapter 4, but it is important to
document the refusal so that any adverse outcomes can be monitored and
accounted for should they occur. If there is no record of such a refusal
occurring, the record is obviously incomplete.
228
7 • Report writing
• If reports are still being handwritten, they should be legible. Incorrect

interpretation of a person’s handwriting can lead to mistakes and has done
so in the past. Remember, if unsure about what is written, always check.
This problem will hopefully be overcome with the introduction of
computerised records, although typographical errors can still occur and any
concerns or uncertainties still need to be raised with the person who has
entered the data.
• Remember that some computer programs have predictive text and also auto-
correct, which can create problems if the language is technical and not easily
recognised by the computer program.
• Reports should be objectively written. This critical distinction can best be
summarised as follows: ‘Learn to record what you see, not what you think you
see’. Three examples follow.
A simple rule to follow is only to write an objective, definite statement of fact.
That is, record what you heard, saw or did and provide as much specific clinical
information as possible, such as measurements of clinical signs and results.
1) A statement such as the ‘patient appears to be drunk’ would be more
accurately reported in the following, or similar, terms:
• the patient is unsteady on his or her feet;
• the patient’s speech is slurred;
• the patient’s breath smells strongly of alcohol.
2) A statement such as the ‘patient appears to be shocked’ would be more
accurately reported in the following, or similar, terms:
• the patient is pale and sweating;
• the patient’s pulse rate and blood pressure are specified;
• the patient has peripheral cyanosis, or the patient’s fingers and toes are
blue.
3) A statement such as the ‘patient appears to be sleeping’ can be
contentious. How to report the patient’s sleep status, especially in night
duty reports, is one area in which nurses commonly seek guidance. The
justification for the use of the word ‘appears’ in this context has been that
some qualification and/or caveat is required in cases where the nurse has
written ‘patient slept well’ but the next morning the patient reports that
he or she didn’t sleep well at all. This can be difficult for nurses as, even if
the patient had one unobserved period of wakefulness but was sleeping
on all occasions when the nurse checked on them, for the patient that
interruption to their sleep, coupled with the strange bed and strange
sounds of the hospital ward, may well feel like a very poor night’s sleep
indeed.
For patients who require constant attention throughout the night, the question
of sleep becomes almost a side issue. However, it is hoped that a patient will sleep
for as much of the night as is possible, but it is still good nursing practice to
observe patients at regular intervals. Here the most accurate and definite report
229
that the nurse can give is to report on the patient’s sleep status as at the time of
observation; for example: ‘Patient observed at regular intervals (if possible
mention the time). When so observed, patient was sleeping’. Obviously where
the patient does not sleep it should also be appropriately and accurately reported.
In conclusion on this point, the use of the word ‘appears’ as a means of quali-
fication is not appropriate.
• Entries in reports should be made at the time a relevant incident occurs. This
is known as ‘contemporaneous reporting’. Nurses have traditionally written
their reports at the completion of each shift. There is no legal reason for this
and it would be more appropriate to make a relevant entry as soon as possible
after an incident or episode of care occurs. Not only will the nurse have better
recall of the event, in some cases if the nurse waits until the completion of the
shift to record an occurrence, that episode may have been overtaken by
subsequent events — particularly if a patient’s condition worsens and various
treatments are commenced and tests undertaken. Trying to recreate the
accurate sequential order at that stage can prove confusing. Any entry that is
made should be prefaced by the date and time and followed by the nurse’s
signature.
• Abbreviations should not be used in reports unless they are accepted healthcare
organisation abbreviations. The diversity of healthcare organisations in which
nurses and other healthcare personnel train and later work leads to a similar
diversity of abbreviations used — often with confusing and misleading results.
Every healthcare facility, as a matter of administrative policy, should have a list
of accepted abbreviations accompanied by the accepted interpretation of each
abbreviation. No other abbreviations should be used in the patient’s records.
It is also critical that those abbreviations are accepted by all healthcare
professionals, as different professional groups can use the same acronyms
or abbreviations to describe different phenomena related to their own area
of practice.
• If medical terminology is used in reports, the nurse must be sure of the exact
meaning, otherwise it could prove misleading.
• Any errors made while writing an entry in a patient’s record should be dealt
with by drawing a line through the incorrect entry and initialling it before
continuing. Total obliteration of the incorrect entry may suggest that there is
something to hide. Writing over mistakes with emphasis and inserting words
left out between lines can also cause confusion and misunderstanding, and
should definitely be avoided. Liquid correcting fluid should never be used to
correct mistakes.
• A number of factors are worth remembering that may reduce the risk of an
incorrect entry being made:
– Do not make an entry in a patient’s record before checking the name on the
record.
– Do not make an entry in a patient’s record that refers to an identifying
room or bed number only. Patients are known to have been moved while
230
staff are absent (for example, during a meal break), and remembering a
patient simply as ‘the patient in room 12’ can sometimes cause incorrect
entries to be made in the chart at the end of room 12 (apart from any other
considerations).
– Make sure that the patient’s name and identifying number is on every sheet
of the patient’s record before making an entry on that sheet. Some
observation sheets are single sheets which are not immediately incorporated
into the body of the patient’s record. If these single sheets are not identified
before any entry is made, there is the risk that the wrong patient’s
observations may be recorded on the sheet unwittingly, or the sheet may be
wrongly identified after an entry is made and then filed in the wrong
patient’s record.
– Avoid wherever possible making notes concerning a patient on loose paper
for rewriting into the patient’s notes. Not only is it common for such scraps
of paper to be lost, but every time an entry is transcribed in this fashion
there exists a margin for error in the transcription itself and there is the risk
that the entry will be made in the wrong patient’s notes. It is also
duplication of work and therefore wastes time.
Integrated recordkeeping
Integrated report writing in the patient’s record is essential. In the past, nurses and
medical officers traditionally wrote separate reports about a patient and these reports
were separately filed. On many occasions neither party read the reports of the other.
That such a situation ever arose is odd enough — that it might continue would be
clearly unsatisfactory and contrary to good practice.
To obtain a comprehensive picture of the patient’s condition and progress, it is
essential that the reports of all healthcare personnel concerned in caring for the
patient be part of an ongoing integrated holistic record. It is also much safer, as it
requires all personnel involved in caring for the patient to read the reports of other
colleagues. Not only is such an undertaking instructive and illuminating for every-
body, but it must also help to ensure that all personnel are aware of what is hap-
pening to the patient — clearly the most important consideration of all. Most
hospitals have already introduced such an integrated system.
Reading the patients’ records

Nurses must ensure that they read their patients’ records thoroughly and regularly.
Many hospitals and some health centres rely on a system of verbal reporting at the
commencement of each shift as the major way of passing on the history and any
relevant information concerning the patient that has arisen during the previous
shift. If the nurse is unfamiliar with the patient, the nurse should read the written
record to gain a more extensive overview of the patient.
Clearly the verbal handover is generally an efficient way of quickly reporting
on all patients to all relevant staff on a shift-by-shift basis. However, the
verbal report must be seen as an adjunct to the written report and not a substitute
231
for it. Important information and pathology results that may not have been men-
tioned in the verbal report may not be known and noted, sometimes until it is
too late.
The value of good nursing records when used as evidence in court

Sometimes the quality of the nursing record has been high and this has been advan-
tageous for nurses in terms of both their verbal evidence1 and their written evi-
dence.2 In the case of Spasovic v Sydney Adventist Hospital 3 the patient claimed that
the nurses employed at the hospital and the doctors who cared for him failed to
exercise reasonable care in assessing and treating complaints he made and symptoms
he exhibited, in particular a headache, which were caused by a small cerebral haem-
orrhage from an arterio-venous malformation (AVM) in his brain. He claimed that,
because of their failure to assess and treat him, he was discharged from hospital
without the small cerebral haemorrhage or the AVM having been diagnosed, and
later on the same day he suffered a major cerebral haemorrhage from the AVM,
which caused him to have very serious permanent disabilities.
The healthcare records were a central plank of the evidence offered in defence by
the hospital and the medical staff. The lawyers representing the hospital made the
following representation as reported by the judge, James J:
It was submitted by counsel … that I should accept the Hospital’s medical
records and particularly the Hospital notes (that is the Integrated Progress
Notes), as reliable evidence and indeed the most reliable evidence
concerning the plaintiff’s headache and events happening during the
plaintiff’s stay in the Hospital.
As was submitted by counsel for the first defendant, the Hospital’s medical
records and particularly the Hospital notes have the virtues, as evidence, of
being contemporaneous records; of having been made by or under the
supervision of trained observers; of having been made, not for the purposes
of litigation or out of self-interest or with hindsight, but for the purpose of
disinterestedly recording, progressively, what was happening during the
plaintiff’s stay in the Hospital; and of being, on the face of them, quite
detailed and not merely perfunctory.
The virtue of having been made without hindsight, that is of having been
made without knowledge of the plaintiff’s major haemorrhage on 20
January 1996 and its consequences, is a virtue possessed by the entries in
the Hospital notes and by very little other evidence, lay or expert, in the
case. I have also had the benefit of seeing and hearing many of the nurses
who made notes give evidence and I formed a generally favourable
impression of them.4
The judge concluded that he had decided, in general, to accept the records as
being ‘an accurate record of the matters purportedly recorded in them’.5 This case
provides a striking example of how good records, made with the sole purpose of
providing good nursing care, not only furnished evidence as to the existence of good
232
nursing care but also enabled the judge to find both the written and verbal evidence
provided by the nurses to be reliable.
The difficulties for nurses when records produced in court are poor
Unfortunately, on numerous occasions the poor quality of nursing records has
meant that the courts have (understandably) taken them literally and found their
depiction of nursing care wanting. Perhaps because nursing has such a strong oral
tradition, the nursing records have never been the major focus of authenticity for
nurses.6 Greater reliance has traditionally been vested in the oral nursing handover.7
Thus, questions such as ‘at what time did you take Mr Smith’s 6 o’clock observa-
tions?’, however illogical they may sound to listeners, are a consequence of the fact
that four-hourly observation charts are often pre-printed with the times, 2, 6, 10,
2, 6, 10.8 This type of chart should no longer be used as it results in a number of
anomalies. For example, if a nurse has a caseload of eight patients, only one can
have their observations recorded exactly on the hour. In addition, the records often
take the form of graphs or plans, meaning times are abbreviated or rounded off to
save space. However, if an observation is taken and found to be abnormal, and
particularly if a patient is seriously ill or a patient’s condition is deteriorating, the
exact time of the observation must be written.
This does not excuse poor recording practices, but it goes some way to explaining
them. Clearly this is problematic for nurses who would wish their records to be
accorded professional authority. Especially when witnesses have poor recollection
of events, judges rely on written evidence, meaning that nurses who do not produce
accurate records will find it difficult to have their account of a particular incident
treated as legitimate if it is inconsistent with the written evidence. When nurses’
charts and times have been tendered in courts and tribunals, and have been found
to be inaccurate, the nurse witness’s credibility has suffered as a consequence. For
example, a finding that ‘these times were all approximate times, were not accurate
times and cannot be relied upon’ led to the judge declaring that ‘I accept [the
anaesthetist’s conflicting] evidence in view of the inexactitude of the nurses’ times
as shown by the contradictions on the charts’.9 The occurrence of inaccuracy in
nurses’ records elicits considerable irritation in judgments.10 Although medical
practitioners’ records have also been the objects of judicial criticism, there is a
stronger written culture in medicine and thus perhaps a tendency to greater accu-
racy.11 This has often enabled their records, and thus their evidence, to carry more
weight than those of nurses’. This reinforces the significance patient records can
have in legal proceedings. It also underscores the importance nursing staff should
place on recording their entries in an accurate, objective and timely manner, taking
into account the whole of the patient’s condition.
Principles in relation to documentation

Many employers, key organisations, government and others have issued guidelines
and principles for documentation. These are designed to provide sound advice to
healthcare professionals and it is important that all healthcare professionals are aware
of the relevant guidelines and principles for their organisation. At the time of
233
writing, public health services nationally have been restructured into Local Health/
Hospital Networks (LHNs) and it remains to be seen whether guidelines will be
issued locally or at jurisdictional level, although it is likely that they will continue
to be issued at state or territory (jurisdictional) level.
One example of such a guideline is the New South Wales Health Department
document Principles for Creation, Management, Storage and Disposal of Health Care
Records.12 These principles were reviewed and updated in 2008 and still provide
sound advice in relation to all aspects of health record management. They are set
out in Box 7.1.
BOX 7.1
NSW HEALTH POLICY DIRECTIVE, PRINCIPLES FOR CREATION,
MANAGEMENT AND DISPOSAL OF HEALTH CARE RECORDS,
PD2005_127
Individual record
A separately identifiable individual health care record is created at the time of a per-
son’s first attendance at a health service. Every attendance or service provided must
be recorded in the health care record. All entries in the health care record are inte-
grated in chronological sequence, and in the case of electronic records, are accessible
and linked to the individual main record. (This includes both inpatient and ambulatory
care services.)
Continuity of care
Health care records are used to promote a continuity of a person’s care across service
boundaries, subject to the principle of confidentiality.
Confidentiality
All information in a person’s health care record is confidential. Disclosure of this infor-
mation is only permissible under certain specific conditions.
Authenticity
All entries in a person’s health care record are accurate statements of fact or state-
ments of clinical judgement relating to care, observation, assessment, diagnosis,
management/treatment, and professional advice.
Relevance
All records of an episode of a person’s care are relevant to that individual and do not
contain prejudicial, derogatory or irrelevant statements about the person.
Completeness and comprehensiveness

A person’s health care record provides complete and comprehensive documentation
of all aspects of care in a chronological manner.
Responsibility for documentation

Health Care personnel who provide a person with care, assessment, diagnosis, man-
agement and/or professional advice are responsible for legibly documenting and
234
dating this activity in the person’s health care record. (Note: all computerised and hand
written systems shall have the capacity to enable identification of individual health
personnel. In a computerised system, this will require the use of an appropriate iden-
tification system eg computer signatures.)
Timeliness of documentation
Documentation in the health care record is to occur at the time of, or as soon as prac-
ticable following the provision of care, observation, assessment, diagnosis,
management/treatment, professional advice, or any other matter worthy of note.
Ownership
The health care record is the property of the health service providing care and not
individual practitioners.
Access
As a general rule health care records are only available to: the person to whom the
record relates; those health care personnel currently involved in the continuing care,
observation, assessment, diagnosis, management/treatment and professional advice;
and in other limited circumstances as in accordance with legislation, common law and
departmental policy.
Quality improvement, review, evaluation and research

Health care records are evaluated using a multidisciplinary approach on an ongoing
basis to assess the quality of documentation, management, storage and to enable
continuous quality improvement and research in health care. Health care records are
also subject to audit.
Durability
Documents that relate to episodes of a person’s care are maintained as a permanent
record for the duration of the retention period. Entries will not fade, be erased or
deleted over time. In addition, records stored electronically shall be capable of being
reproduced on paper and adequate backups kept.
Storage and security

Health care records must be stored in a secure place which can only be accessed by
authorised personnel.
Retention
Records are held for the period required by law and policy, and are accessible when
necessary.
Disposal
Health care records are disposed of in such a manner that will preserve the confiden-
tiality of any information they contain relating to any person.
235
At an international level, in 2007, the South East Asian Region of the World
Health Organisation (SEARO WHO) issued the Guidelines for Medical Record and
Clinical Documentation;13 these are particularly concise as they are based on three
guiding principles, set out below.
Guiding Principle 1: Comprehensive and complete record
Clinical staff have a professional obligation to maintain documentation that is
clear, concise and comprehensive, as an accurate and true record of care.
Guiding Principle 2: Patient-centred and collaborative
Documentation focuses on patients, is collaborative, and is appropriate to the
setting in which the care is provided and the purpose for which the information is
recorded.
Guiding Principle 3: Confidential
Documentation systems (including electronic systems) will ensure and maintain
patient confidentiality, in all care settings.14
One of the most useful aspects of the SEARO WHO guidelines is the criteria
they identify for the auditing and monitoring processes. They suggest that the
standard and quality of the documentation should assess compliance with:
• relevant documentation policy and procedures;
• professional/industry/sector standards;
• relevant legislation;
• consistency of understanding/documentation practices across the organisation;
• identified gaps of inconsistencies/discrepancies in documentation;
• content/context of documentation; and
• requirements for coding.15
In addition, the guidelines suggest that the criteria against which the evidentiary
compliance should be reviewed are as follows:
• that the documentation is contemporary;
• that the documentation is a factual and true record (authentic);
• that the documentation is based on evidence and observation (accurate);
• that the entries made are timely;
• that the documentation is inclusive of planned care provided and actions
taken; and
• that the documentation is a complete record.16
These are useful criteria against which to review both the policies for documenta-
tion and the documentation itself, as it is important that both guidelines and docu-
mentation are reviewed and updated on a regular basis.
Advice available to nurses on documentation and confidentiality

In addition to advice on what and how to document, there is also valuable advice
available from most health departments and some employers on the relationship
between documentation and confidentiality. One of the most comprehensive small
236
brochures on this topic, A guide to maintaining confidentiality in the public health

system,17 is available on the South Australian Department of Health’s website. It
provides specific advice about both handwritten and e-records, and due to its size,
can be easily downloaded and kept in a notebook or on a smartphone for easy access.
In addition to its specific advice, it concludes with the following set of ‘important
points to remember’, which are valid for all nurses and midwives, regardless of their
place or location of employment:
• You are only permitted to use or divulge client information on a need to
know basis in the course of performing your work, unless you have prior
written authority from the health service executive (or delegate) to divulge the
information in other circumstances, or you are required by law to report
certain information; for example, notification of child abuse and notifiable
diseases to the appropriate authorities.
• Accessing your own medical records in hardcopy or electronic format is a
breach of confidentiality.
• The client’s medical record is a confidential document, the content of which
should only be divulged in the course of your working duties unless prior
authorisation from the health service executive (or delegate) has been obtained,
or you are required by law to report certain information.
• You must only use the health service electronic systems to perform your
work. Electronic systems must not be used to gain access to client information
for personal use.
• Conversations about clients must not be conducted in the presence of, or be
overheard by, those not entitled to know the information in the performance
of their daily duties.
• Disclosure of client information over the phone should be limited and
undertaken in accordance with health service policy. It is your individual
responsibility to maintain confidentiality when you have access to, or
knowledge of, confidential information.18
Documentation in nursing homes

A relatively small proportion of our elderly population in Australia lives in nursing
homes. Those who do so live there because they are no longer able to care for
themselves or be cared for in the community and will require long-term nursing
care with progressive deterioration over time as they age. Thus, they are especially
vulnerable and it is now recognised that they require specialised nursing care. Over
the years, the need to protect both the environment in which these frail elderly
people live and the standard of care they receive has been recognised and enshrined
in legislation, both at state and federal level. The major piece of legislation is the
Aged Care Act 1997 (Cth) that sets out (inter alia) a number of principles relating
to the environment, care and management of elderly people.19 Nurses often seek
guidance about documenting the care of people living in nursing homes, given that
they are there for a long time, and questions such as how often to document and
what to document are commonly raised. In 2011, the Aged Care Funding
237
Instrument20 was reviewed and a number of recommendations were made in rela-

tion to documentation. These are available on the Australian Government Depart-
ment of Health and Ageing website.
Specifically, the website offers the NATFRAME, a format designed ‘to help staff
communicate and deliver high-quality care for older people’.21 It provides for the
initial assessment of those entering care and for the continuing evaluation, reassess-
ment and planning of care. The framework is divided into three sections:
1) initial assessment, comprising admission data and assessment;
2) assessment tools, of which there are a number, including depression assessment
tools, mini mental state examination tools and falls risk assessment tools;
3) ongoing care, comprising care profile, management charts and progress notes.
One of the reasons for the introduction of a (relatively) new Aged Care Funding
Instrument (ACFI) was to ‘reduce the documentation burden on staff’.22 Whilst
this tool is used as a means of accessing funding for aged care service providers, it
is clear that the assessment of residents who require the funding will fall to the
nursing staff on most occasions. The ACFI consists of 12 care need questions.
Diagnostic information about mental and behavioural disorders and other medical
conditions is also collected. This information is used to categorise residents as having
low, medium or high care needs in each of the following care domains:
• activities of daily living (ADLs);
• behaviour;
• complex healthcare.23
The assessment pack is extremely detailed and various charts need to be kept for
a number of days to have a full assessment of residents’ care needs.24 Nurses who
are going to work in the aged care sector will need to be familiar with these assess-
ment and documentary requirements and will need to keep abreast of updates on
the Department of Health and Ageing website. Aged care provider organisations
also offer valuable updates and advice in relation to documentation requirements
in aged care.25
The national e-health transition authority (NEHTA)

At the time of writing, it seems impossible to consider report writing and record-
keeping without first outlining the plans of the current government for a national
e-health system. The National E-Health Transition Authority Limited (NEHTA)
was established by agreement of the national, state and territory governments
in 2005 to develop better ways of collecting and securely exchanging health
information electronically.26 The NEHTA website states that the organisation is
committed to:
• Improving the quality of healthcare services, by enabling authorised clinicians
to access a patient’s integrated healthcare information and history, directly
sourced from clinical notes, test results and prescriptions using standardised
clinical data formats and terminologies.
238
• Streamlining multi-disciplinary care management, enabling seamless handovers

of care by ensuring efficient electronic referrals; authorised access to up-to-date
clinical opinions and patient healthcare histories via shared patient health
records; and fast, secure mechanisms for directly exchanging important
notifications between healthcare providers.
• Improving clinical and administrative efficiency, by standardising certain types
of healthcare information to be recorded in e-health systems; uniquely
identifying patients, healthcare providers and medical products; and reforming
the purchasing process for medical products.
• Maintaining high standards of patient privacy and information security.27
In the past 12 months, significant progress has been made towards the scheme
becoming a reality. Despite some controversy, the Healthcare Identifiers Act 2010
(Cth) was passed in June 2010 which creates the potential for every person in Aus-
tralia to have an individual healthcare identifier (IHI), which will be managed
through Medicare. This is a fundamental building block of a national e-health
scheme and enables the work of NEHTA to progress in a more coordinated fashion.
NEHTA plans to seek to drive the adoption of a range of new healthcare capabili-
ties across the sector, which will incorporate both foundations and solutions.
The foundations include: Individual Healthcare Identifiers (IHI), Healthcare
Provider Identifiers for Individuals (HPI-I), Healthcare Provider Identifiers for
Organisations (HPI-O), Authentication, Secure Messaging, Clinical Terminologies
and Supply Chain; and the E-Health solutions feature: Pathology, Diagnostic
Imaging, Medication Management, Referral and Discharge Summary.28
There are now plans in place for individuals to hold Personally Controlled Elec-
tronic Health Records (PCEHR) — a secure, electronic record of a person’s medical
history, stored and shared in a network of connected systems. The PCEHR will
bring key health information from a number of different systems together and
present it in a single view. It is anticipated that e-discharge summaries, e-medication,
e-pathology and e-referrals will be part of this process.29 As part of the 2010/11
federal budget, the Commonwealth Government announced a $466.7 million
investment over 2 years for a national PCEHR system for all Australians who choose
to register online, from 2012–13.
From July 2012, all Australians who choose to can register for a PCEHR. As the
PCEHR system matures, Australians who use a PCEHR will be able to see their
important health information in one consolidated view. They will be able to share
this information with trusted healthcare practitioners, who in turn will be able to
access their patient’s PCEHR to support the delivery of high-quality healthcare
regardless of where and when it is needed. A Concept of Operations document has
now been developed for public release.30
Clearly such a wide-ranging proposal will address some of the difficulties encoun-
tered with handwritten records. In addition, many computerised systems for pre-
scribing already have built-in systems for detecting errors, which have been
demonstrated to reduce prescribing adverse events.31 However, if the patient care is
not good, the record can only reflect the care delivered and in this way, the record
239
is only ever a reflection of the actual patient care. Having said that, the record may
well provide standardised formulae for documentation of care that may enable more
consistent information to be documented and shared. The majority of the consid-
erations below will nonetheless continue to be relevant for all records, both hand-
written and computerised.
The American Health Information Management Association (AHIMA) has
developed a set of guidelines to assist nurses and midwives in maintaining authentic
e-health records.32 They identify four areas of concern in relation to e-health fraud,
as follows:
1) Authorship integrity: borrowing record entries from another source or author
and representing or displaying past as current documentation and (in some
instances) misrepresenting or inflating the nature and intensity of services
provided.
2) Auditing integrity: inadequate auditing functions that make it impossible to
detect when an entry was modified or borrowed from another source and
misrepresented as an original entry by an authorised user.
3) Documentation integrity: automated insertion of clinical data and visit
documentation using templates or similar tools with predetermined
documentation components with uncontrolled and uncertain clinical relevance.
4) Patient identification and demographic accuracy: automated demographic
or registration entries generating erroneous patient identification, leading to
patient safety and quality of care issues as well as enabling fraudulent activity
involving patient identity theft or providing unjustified care for profit.33
The publication also provides a set of solutions to ensure accuracy and, whilst
these are prepared for the American e-health system, they are equally as relevant to
the Australian setting.34
Given the concerns about internet and computer security that exist in the general
population, questions of privacy and confidentiality are specifically relevant to
health record administrators, consumers and clinicians. On 1 November 2010 the
Australian Government’s Office of the Privacy Commissioner was integrated into
the Office of the Australian Information Commissioner (OAIC).35 The privacy site
contains a great number of links that relate to some of the privacy issues and con-
cerns about the introduction of electronic health records. Privacy and confidentiality
is discussed in more detail below.
Reporting and documenting adverse events and clinical incidents

Following work undertaken in South Australia in anaesthetic incident reporting in
the late 1980s, in 1993 the Australian Government provided funding to the Aus-
tralian Patient Safety Foundation (APSF) to continue that work and to set up pilot
studies in other specialty areas. In 1994, the brief was broadened to develop an
incident monitoring model that could be used on an institutional basis, rather than
being specialty-focused. A pilot study was conducted in six tertiary facilities in dif-
ferent Australian states.
240
The national release of results from the Quality in Australian Health Care Study
(QAHCS) in 199536 prompted strong reactions from government, healthcare pro-
fessionals and the general public. The South Australia Government took the initia-
tive to look at options for reducing risk in South Australian healthcare units. As a
consequence, in November 1996, the APSF was engaged to develop and implement
a patient incident reporting and monitoring system for all public health units in
that state — the Australian Incident Monitoring System (AIMS).37 In 2004, the
(then) Australian Council for Safety and Quality in Health Care (now the Australian
Commission on Safety and Quality in Health Care) developed and recommended
to Health Ministers a national specification for incident reporting and management
systems to support the reporting and management of incidents at the local level
and to identify better ways to manage hazards and risks to improve systems of care.38
The incident reporting systems are developed in each jurisdiction and are set out
by name and resource access in Table 7.1.
An example of a new incident management system is the Victorian Health Inci-
dent Management System Project (VHIMS). The information on the website cau-
tions that a standardised, state-wide incident reporting data set and data collection
mechanism will in itself not provide many benefits unless the data collected is
meaningful and appropriate mechanisms are established to use this data to drive
ongoing quality improvement initiatives.39 The potential benefits of the new system
being rolled out in Victoria are as follows:
• better understanding of type, frequency and severity of incidents that are occurring
within Victorian health services, via an ability to pool data across the state;
Table 7.1
Incident reporting systems
State/territory Name of program Website
ACT Riskman http://www.health.act.gov.au/c/health?a=dlpubpoldo
c&document=2202
NSW NSW Patient Safety http://www.cec.health.nsw.gov.au/programs/
Program patient-safety.html
NT Riskman No external website available. Nursing staff log on
through intranet
Qld Health Incident http://www.health.qld.gov.au/qhpolicy/docs/pol/
Management System qh-pol-012.pdf
SA Incident Management http://www.sahealth.sa.gov.au/wps/wcm/connect/
System public+content/sa+health+internet/about+us/
safety+and+quality/incident+management/
incident+management+system
Tas Electronic Incident No external website available. Nursing staff log on
Monitoring System through intranet
(EIMS)
Vic Clinical Risk http://www.health.vic.gov.au/clinrisk/ http://
Management Program www.health.vic.gov.au/clinrisk/vhims/index.htm
WA Advanced Incident http://www.safetyandquality.health.wa.gov.au/home/
Monitoring System
241
• the ability for health services to compare their incident information across like
organisations;
• the ability to use this information to measure the effectiveness of various
quality improvement projects that aim to reduce the prevalence of particular
incidents;
• the ability to use this information to provide justification for new quality
improvement initiatives, targeted toward identified problematic areas;
• a reduction in the rate of clinical incidents, through appropriately targeted
quality improvement initiatives; and
• opportunities to allocate resources normally consumed by incidents toward
other areas of patient care where resources are required.40
The VHIMS website provides the definitions of ‘incident’ and ‘clinical incident’
set out in Box 7.2. The website also has an easily accessible online e-learning package
for staff.41
When incidents are reported, they are coded by severity and likelihood of recur-
rence under the Severity Assessment Code (SAC), and rated numerically from 1,
being the most severe, to 4. New South Wales Health requires that SAC1 events
must be notified to the Department of Health, and a root cause analysis (RCA)
completed.42 An RCA is an indepth investigation as to the cause and circumstances
that created the environment in which the event occurred. This process is protected
by what is known as qualified privilege,43 which is granted to certain committees
in New South Wales under the Health Administration Act 1982, Division 6B. The
Western Australia Office of Safety and Quality in Healthcare explains that the
‘qualified privilege scheme is designed to encourage hospitals and health profession-
als to conduct quality improvement activities and investigate the causes and
BOX 7.2
VICTORIAN HEALTH INCIDENT MANAGEMENT SYSTEM
DEFINITIONS44
Incident: An event or circumstance which could have resulted, or did result, in unin-
tended or unnecessary harm to a person and/or a complaint, loss or damage (ACSQHC
2006).
Clinical incident: An event or circumstance which could have resulted, or did result, in
unintended or unnecessary harm to a person receiving care (minor variation on
ACSQHC 2006 definition).
A clinical incident can be an adverse event: An incident in which harm resulted to a
person receiving healthcare (ACSQHC 2006). A clinical incident can also be a near miss:
An incident that did not cause harm (ACSQHC 2006). Near misses encompass incidents
that had potential to cause harm but didn’t, due to timely intervention and/or luck/
chance.
242
contributing factors of clinical incidents by protecting certain information from

disclosure and protecting clinicians involved in the activity from civil liability’.45 It
goes on to explain that it is important to review what went wrong to improve the
safety and quality of healthcare, and to find ways to prevent the event from hap-
pening again. It is generally believed that people will be more likely to talk about
the mistakes they made if they know that the information they disclose cannot
legally be revealed to anyone. Disclosure of healthcare mistakes allows the identifica-
tion of environments conducive to errors, and this facilitates the redesign of systems
to create an environment in which it is more difficult to make a mistake.46 In New
South Wales this right for information obtained during the course of the investiga-
tion to be kept confidential has recently been confirmed by the Administrative
Decisions Tribunal.47
Nurses are the largest group of healthcare workers, so it is hardly surprising that
they are also the largest group of reporters of clinical incidents and near misses.48
Nurses all need to become fully conversant with the incident-reporting policy in
their workplace. As with all other documentation, it is most important that the
reports submitted are factual and accurate. This can present a challenge at times, as
a sentinel or adverse event is most distressing for all concerned, and there can be a
tendency for incident reports to be written in emotional language. However, it is
most important for the safety and quality process that the reports can be carefully
analysed to understand exactly what went wrong so that measures can be put in
place to minimise the risk of such an event reoccurring. If nurses are distressed fol-
lowing an adverse event, it is important that they seek support from their more
experienced colleagues. If they do not feel comfortable discussing the matter with
their immediate colleagues, all healthcare organisations are required to provide
support through some form of employee assistance scheme. The occupational health
and safety officers can provide advice on how to access this support.
Confidentiality of healthcare records

The requirement for nurses to observe a duty of confidentiality is spelled out in the
Nursing and Midwifery Board of Australia (NMBA) Code of Conduct and Code of
Ethics.49 It is self-evident that, if nurses are to expect their patients to proffer highly
sensitive information so they can care for them appropriately, patients must feel
secure that the nurses will not divulge that information without their consent.
Clearly if the patient does consent to the sharing of confidential information, the
duty is overridden, but only to the extent that the patient has consented. For
example, if the person is happy for the nurse to share information with the team
but not the family, there is still a duty to maintain confidentiality as specified.
There are a number of exceptions to this rule in each state and territory. The first
is where it is mandated or permitted by statute or court order to share the informa-
tion. An example of the former is mandatory reporting of notifiable diseases and
suspected child abuse. An example of the latter is a subpoena requiring the produc-
tion of data gathered in research. A judge could, however, exercise judicial discretion
in deciding whether it should be admitted in evidence. However, the information
can often be excluded as it is not the best evidence of the facts in issue.
243
The second major exception is where it is ‘in the public interest’. This rather
vague common-law principle is based on the broad and ancient notion that the
duty of confidence owed to an individual gives way to the obligation to report which
‘lies on every member of the society to discover every design which may be formed
contrary to the laws of society, to destroy the public welfare’.50 This obligation tends
to fall into two areas; first, that which is sometimes described as the ‘iniquity rule’,
that is, the disclosure of a crime or misdeed; and second, the ‘balancing rule’ where
the disclosure must be balanced in the public interest against the need for confi-
dentiality. Disclosure of criminal activity or other civil wrong, even if it involves
disclosing information that is confidential, may sometimes be justified on this
ground. As Kirby P (as he then was) said about the balancing act in the Spycatcher
case: ‘public interest in an open discussion of the matters raised in Spycatcher [relat-
ing to the affairs of ASIO and ASIS] outweigh the residual equitable duty of
confidence or fiduciary duty of silence operating on [the author’s] conscience’.51
However, that disclosure must be in the public interest. If the public interest
is not advanced by the disclosure, it will not be permissible to breach
confidentiality.
Regulations currently exist to allow a chief health officer to release epidemiologi-
cal data and a director-general to release other information for research purposes.
Such data are only released to bona fide researchers and on condition that the con-
fidentiality of data is maintained.52 Overall, the expectation is that we will take great
care to respect the confidences entrusted to us by our patients. Each state and ter-
ritory has legislation which requires people who deal with healthcare records to
maintain confidentiality.
In addition, healthcare workers and public health organisations can owe a
common-law duty of confidentiality to their clients/patients. This duty arises from
the nature of the relationship between health workers and their clients/patients.
Healthcare providers may be sued in the civil courts by clients/patients for
breaches of confidentiality. Damages may be awarded for any injury or harm to a
client/patient caused by the breach of confidentiality. Health workers should be
aware, however, that a common-law action for breach of confidence would also
recognise a defence that the disclosure was lawful where a statutory obligation or
power exists to justify disclosure. Where a confidentiality obligation exists a client/
patient may also, if aware that the duty may be breached, seek court orders to
prevent the breach occurring.
The increasing complexity of our society has resulted in the perceived need for a
variety of government and private sector agencies to acquire and store information
of a personal and often sensitive nature about individuals, which seriously threatens
the notion of individual privacy in the conduct of people’s daily lives. The need to
compile a healthcare record about a patient or client is obvious and the use to which
such records are formally put has already been stated and cannot be seriously ques-
tioned. The very nature of healthcare records is such that highly personal and sensi-
tive material is often contained in them. It is therefore important that hospitals and
health centres recognise and respect the right of individual privacy as far as their
patients or clients are concerned and that steps be taken to respect that privacy,
particularly in relation to healthcare records.
244
The use, storage of and access to a patient’s or client’s healthcare record should
be (and in most cases is) the subject of clear guidelines by every hospital and health
organisation. Guidelines do not have the legal and binding force of legislation, but
should be recognised for what they are meant to be — a clear statement of policy
directives in relation to a particular issue of general importance in an organisation,
and which quite often embody legal principles and/or requirements.
As previously discussed, electronic information, mail and communication systems
are increasingly used as effective means of maintaining and transferring documenta-
tion and information in the healthcare environment. Precautions must be taken to
ensure that clinical staff are fully informed of appropriate, safe and secure use of
electronic information systems. It should be assumed that any and all clinical docu-
mentation will be scrutinised at some point.
Patients’ right of access to their healthcare records
AT COMMON LAW
In contrast with health departments’ guidelines, which support the patient’s right
to have access to his or her medical records, the High Court of Australia decision
in Breen v Williams in 1995 discounted such a proposition as a legal right both at
common law and as a fiduciary duty owed by the medical practitioner to his or her
patient.53 Ms Breen had commenced action in the Supreme Court of New South
Wales seeking an order that her plastic surgeon give her access to her medical
records. She had spent 5 years attempting to obtain her medical records to support
her participation in a class action in the United States over breast implants. Ms
Breen claimed she had a proprietary right and interest in the information contained
in her medical records, or was otherwise entitled to the information, and sought
orders giving her access to her medical records to examine them and to obtain
copies. The doctor argued that because his medical notes were:
… prepared by me in the belief that they will remain private to me, they
often contain conclusions, commentary and musing which might well be
different in form and substance if the notes were prepared by me in the
knowledge that the patient was entitled to a copy of my records.54
The initial judge hearing the matter refused Ms Breen’s application on the
grounds that:
The defendant was not made the plaintiff’s medical adviser for the purpose
of making him a collector or repository of information for the plaintiff to
have available to her for whatever purposes she chooses. Collecting and
retaining information was … a subsidiary purpose, to lead only to medical
advice and treatment to be administered by him or on his referral.55
Ms Breen appealed to the New South Wales Court of Appeal who dismissed her
appeal by a majority.56 She then appealed to the High Court where her appeal was
also dismissed. Justice Brennan gave the following reasons for doing so:
For these reasons, I would hold that information with respect to a patient’s
history, condition or treatment obtained by a doctor in the course or for the
purpose of giving advice or treatment to the patient must be disclosed by
245
the doctor to the patient or the patient’s nominee on request when

(1) refusal to make the disclosure requested might prejudice the general
health of the patient, (2) the request for disclosure is reasonable having
regard to all the circumstances and (3) reasonable reward for the service of
disclosure is tendered or assured. A similar duty may be imposed on the
doctor by the law of torts but in particular situations, for example, some
emergency treatments, the relationship between doctor and patient may not
give rise to a duty that extends so far. It is not necessary now to consider
that problem.
An undertaking to provide information is one thing; a duty to give the
patient access to and to permit the patient to copy the doctor’s records is
another. The doctor’s duty to provide information not only can be
discharged, but also in some circumstances ought to be discharged, without
allowing the patient to see the doctor’s records. Where that duty can be
performed without giving the patient access to the doctor’s records, there is
no foundation for implying any obligation to give that access. There is no
evidence in this case to suggest that access to the respondent’s records might
have been necessary to avoid or diminish the possibility of prejudice to the
appellant’s health.57
LEGISLATIVE PROVISIONS IN RELATION TO RIGHT OF ACCESS TO HEALTHCARE

RECORDS AND PRIVACY CONSIDERATIONS
In response to the High Court decision in Breen v Williams the Australian Gov-
ernment set out requirements known as the Information Privacy Principles for
federal agencies in relation to personal information, in the Privacy Act 1988 (Cth).
The provisions initially established an Office of the Privacy Commissioner (OPC)
but this role and title has just changed to that of the Office of the Australian
Information Commissioner (OAIC). However, the OPC issued guidelines and
principles in relation to the protection of privacy and these at the time of writing
are unchanged.
The Information Privacy Principles under the Privacy Act 1988 (Cth) address the
following issues:
Principle 1 — Manner and purpose of collection of personal information
Principle 2 — Solicitation of personal information from individual concerned
Principle 3 — Solicitation of personal information generally
Principle 4 — Storage and security of personal information
Principle 5 — Information relating to records kept by record-keeper
Principle 6 — Access to records containing personal information
Principle 7 — Alteration of records containing personal information
Principle 8 — Record-keeper to check accuracy etc of personal information
before use
Principle 9 — Personal information to be used only for relevant purposes
Principle 10 — Limits on use of personal information
Principle 11 — Limits on disclosure of personal information.58
246
In terms of access to healthcare records, Principle 6 states that:

Where a record-keeper has possession or control of a record that contains
personal information, the individual concerned shall be entitled to have
access to that record, except to the extent that the record-keeper is required
or authorised to refuse to provide the individual with access to that record
under the applicable provisions of any law of the Commonwealth that
provides for access by persons to documents.59
These requirements were extended to the private sector in the Privacy Amendment
(Private Sector) Act 2000 (Cth). The private sector provisions cover all healthcare
service providers in Australia regardless of size. A second set of principles, known
as the National Privacy Principles, were developed to set minimum standards for
privacy in the private sector. The National Privacy Principles provide requirements
relating to the questions of collection, use and disclosure, data quality and security,
openness, access and correction, anonymity, identifiers, trans-border flows and
sensitive information.60 Further, specific information relating to healthcare records
in the private sector is also available.61
The federal Privacy Act does not regulate state or territory agencies except for the
Australian Capital Territory. All states and territories have developed privacy require-
ments, either enshrined in different pieces of legislation or as guidelines or codes.
The various state and territory provisions are available from the website of the Office
of the Australian Information Commissioner.62
OPEN DISCLOSURE
A related matter that sits between the recording of adverse events and a patient’s
right of access to information, if not necessarily to his or her healthcare record, is
the movement to inform patients and their families when a person has suffered
an adverse event. This process is referred to as ‘open disclosure’ (OD) and was
introduced into Australian mainstream healthcare requirements by the (then) Aus-
tralian Council for Safety and Quality in Health Care (now the Australian Com-
mission on Safety and Quality in Health Care) when it published the National
Open Disclosure Standard.63 This was endorsed by all Health Ministers in July
2003. In the past, often due to legal concerns, healthcare professionals were
defensive about admitting that something had gone wrong, even when no fault
was necessarily attached to it, usually because of the perceived threat of legal
action.
However, it is now considered to be best practice to explain to people what has
happened when things go wrong, and it is not considered that this is necessarily an
admission of liability (see Chapter 3). The standard defines four elements to the
process of OD, which is a means of encouraging open communication when things
go wrong in healthcare. The elements include an expression of regret; a factual
explanation of what happened; the consequences of the event; and the steps being
taken to manage the event and prevent a recurrence.64 The National Standard
contains a set of eight principles, many of which are equally relevant to
recordkeeping.
247
1) Openness and timeliness of communication. When things go wrong, the

patient and their support person should be provided with information about
what happened in an open and honest manner at all times. The open disclosure
process is fluid and may involve the provision of ongoing information.
2) Acknowledgment. All adverse events should be acknowledged to the patient
and their support person as soon as practicable. Healthcare organisations
should acknowledge when an adverse event has occurred and initiate the open
disclosure process.
3) Expression of regret. As early as possible, the patient and their support person
should receive an expression of regret for any harm that resulted from an
adverse event.
4) Recognition of the reasonable expectations of patients and their support
person. The patient and their support person may reasonably expect to be
fully informed of the facts surrounding an adverse event and its consequences,
to be treated with empathy, respect and consideration, and to be provided with
support in a manner appropriate to their needs.
5) Staff support. Healthcare organisations should create an environment in
which all staff are able and encouraged to recognise and report adverse events
and are supported through the open disclosure process.
6) Integrated risk management and systems improvement. Investigation of
adverse events and outcomes are to be conducted through processes that focus
on the management of risk. Outcomes of investigations are to focus on
improving systems of care and will be reviewed for their effectiveness.
7) Good governance. Open disclosure requires the creation of clinical risk and
quality improvement processes through governance frameworks where adverse
events are investigated and analysed to find out what can be done to prevent
their recurrence. It involves a system of accountability through the
organisation’s chief executive officer or governing body to ensure that these
changes are implemented and their effectiveness reviewed.
8) Confidentiality. Policies and procedures are to be developed by healthcare
organisations with full consideration of the patient’s, carer’s and staff’s privacy
and confidentiality, in compliance with relevant law, including Commonwealth
and state and territory privacy and health records legislation.65
Open disclosure is now well established, particularly in the Australian public
hospital system, and seems to open the potential for improved relationships between
healthcare practitioners and patients.66 Whilst it does not relate directly to docu-
mentation and medical records, it is nevertheless closely related to the patients’
rights to information, an issue that is also discussed in Chapter 4.
CONCLUSION
It is clear that healthcare records play a most important role in the lives and practice
of nurses. Their good management and meticulous upkeep will protect not only
the care and safety of the patient, but also the professional standing of the individual
nurse. It is most important that nurses keep up-to-date with the laws and policies
248
relating to documentation and privacy, particularly as the use of electronic records

becomes mainstream.
Endnotes
Note: All links given below were last accessed on PER 9; Inquest touching the death of
4 January 2012. CWCK (T), Perth Coroner’s Court, 30
1) Savoie v Bouchard (1982) 23 CCLT 83; March 1994, McCann D A, Mr; Hill v West
Corley v North West Hertfordshire Health Lancashire HA (1997) 8 Med LR 196.
Authority HA (1997) 8 Med LR 45. 11) Breen v Williams [1995] HCA 63; (1996)
2) Briffet v Gander and District Hospital Board 186 CLR 71.
(1992) 103 Nfld & PEIR & 326 APR 271. 12) NSW Health, Principles for Creation,
3) Spasovic v Sydney Adventist Hospital [2003] Management, Storage and Disposal of Health
NSWSC 791 (12 September 2003) per Care Records, Policy Directive PD2005_127,
James J, http://www.austlii.edu.au/au/cases/ 2005, http://www.health.nsw.gov.au/policies/
nsw/supreme_ct/2003/791.html. See also PD/2005/pdf/PD2005_127.pdf.
Durant v Tamworth Base Hospital [2003] 13) South East Asian Region of the World
NSWSC 73, where it was found ‘in relation Health Organisation, Guidelines for Medical
to his relevant complaints of pain [the Record and Clinical Documentation, 2007,
plaintiff’s evidence is] in this regard to be http://www.searo.who.int/LinkFiles/2007_
totally outweighed in a probative sense by Guidelines_for_Clinical_Doc.pdf.
the notations in the hospital records’ (at [31] 14) Ibid, p 9.
per Newman AJ), http://www.austlii.edu.au/ 15) Ibid, p 6.
cgibin/sinodisp/au/cases/nsw/ 16) Ibid.
NSWSC/2003/73.html. 17) South Australian Health Department,
4) Spasovic v Sydney Adventist Hospital [2003] A guide to maintaining confidentiality in the
NSWSC 791 at [388]–[390]. public health system, 2007, http://www.
5) Ibid, at [391]. publications.health.sa.gov.au/cgi/
6) Robinson Wolf Z, ‘Nurses’ stories: viewcontent.cgi?article=1002&context=patri.
discovering essential nursing’, MedSurg 18) Ibid, p 4.
Nursing, FindArticles.com, 2008, http:// 19) Records Principles 1997, as amended 20
findarticles.com/p/articles/mi_m0FSS/ March 2008, made under subsection 96-1(1)
is_5_17/ai_n31340007/. of the Aged Care Act 1997 (Cth), http://
7) Parker J, Gardner G and Wiltshire J, www.comlaw.gov.au/comlaw/Legislation/
‘Handover: The collective narrative of LegislativeInstrumentCompilation1.nsf/0/
nursing practice’, (1992) Australian Journal AC8C368FD64A823DCA25741-
of Advanced Nursing 9(3): 31–37. See more 20012D9CA?OpenDocument.
recently McKnight M, ‘A grounded theory 20) Commonwealth Department of Health and
model of on-duty critical care nurses’ Ageing, Aged Care Funding Instrument
information behaviour: The patient-chart Report, Aged Care website, 2011, http://
cycle of informative interactions’, (2007) www.health.gov.au/internet/publications/
Journal of Documentation 63(1): 57–73, publishing.nsf/Content/
http://www.emeraldinsight.com/journals.htm ageing-acfi-review-may2011-toc~ageing-acfi-
?articleid=1589317&show=abstract. review-may2011-ch6.
8) Zeitz K and McCutcheon H, ‘Observations 21) Commonwealth Department of Health and
and vital signs: ritual or vital for the Ageing, NATFRAME website, http://
monitoring of postoperative patients?’ (2006) www.health.gov.au/internet/main/
Applied Nursing Research 19(4): 204–211. publishing.nsf/Content/ageing-rescare-
9) Laidlaw v Lion’s Gate Hospital (1969) 70 natframe.htm~ageing-rescare-natframe01.
WWR 727 at 739. htm.
10) Joseph Brant Memorial Hospital v Koziol 22) Commonwealth Department of Health and
(1977) 77 DLR (3d) 161; Inquest touching Ageing, New Funding Model for Residential
the death of MWF, Adelaide and Claire Aged Care, Welcome to the Aged Care
Coroner’s Courts, 22 June 1993, Thompson Funding Instrument website, http://
G, Mr; Farrell v Cant (1992) 104 Nfld & www.health.gov.au/acfi/.
249
23) Commonwealth Department of Health and 36) Wilson R McL, Runciman W B, Gibberd R
Ageing, New Funding Model for Residential W et al., ‘The quality in Australian health
Aged Care, Aged Care Funding Instrument care study’, (1995) Med J Aust 163:
factsheets, http://www.health.gov.au/internet/ 458–471.
main/publishing.nsf/content/ageing-acat- 37) Australian Patient Safety Foundation
secure-acfi-acat-factsheet.htm. website, History and objectives, http://
24) Commonwealth Department of Health and www.apsf.net.au/index.php.
Ageing, New Funding Model for Residential 38) Australian Commissioner on Safety and
Aged Care, Aged Care Funding Instrument Quality in Health Care, Health Service
Appraisal Pack, http://www.health.gov.au/ Standards and Accreditation, 2011, http://
internet/main/publishing.nsf/Content/ www.safetyandquality.gov.au/our-work/
ageing-acfi-using-conducting.htm. accreditation/.
25) See the following websites for examples: 39) Victorian Health Incident Management System
Aged Care Association of Australia, http:// Project (VHIMS), http://
www.agedcareassociation.com.au/; Aged and www.health.vic.gov.au/clinrisk/vhims/
Community Services Association, http:// index.htm.
www.agedservices.asn.au/; and Aged Care 40) http://www.health.vic.gov.au/clinrisk/vhims/
Australia, a government site that provides objective.htm.
advice and access to people needing to 41) http://vhimsedu.health.vic.gov.au/.
obtain care for the elderly, http://
agedcare.gov.au. 42) http://www.health.nsw.gov.au/pubs/2005/
sac_matrix.html.
26) National E-Health Transition Authority
website, http://www.nehta.gov.au/. 43) NSW Health Policy Directive PD2007_061,
Incident management, 2007, http://
27) Ibid, http://www.nehta.gov.au/about-us/ www.health.nsw.gov.au/policies/pd/2007/
strategy. pdf/PD2007_061.pdf.
28) Ibid, http://www.nehta.gov.au/about-us/ 44) http://www.health.vic.gov.au/clinrisk/vhims/
nehta-blueprint. objective.htm.
29) Ibid, http://www.nehta.gov.au/ehealth- 45) Western Australian Department of Health,
implementation/pcehr-lead-sites. Office of Safety and Quality in Healthcare,
30) Ibid, http://www.yourhealth.gov.au/internet/ Qualified Privilege, http://
yourhealth/publishing.nsf/Content/ www.safetyandquality.health.wa.gov.au/
pcehr-document. clinical_incid_man/qualified_priv.cfm.
31) Ammenwerth E, Schnell-Inderst P, Machan 46) Ibid.
C and Siebert U, ‘The effect of electronic 47) Bray v North Coast Area Health Service
prescribing on medication errors and adverse [2009] NSW ADT 93 (4 May 2009).
drug events: A systematic review’, (2008)
J Am Med Inform Assoc 15(5): 585–600. 48) Nuckols T, Bell D and Liu H, ‘Rates and
types of events reported to established
32) AHIMA e-HIMTM Work Group: Guidelines incident reporting systems in two U.S.
for EHR Documentation Practice, hospitals’, (2007) Quality & Safety in Health
‘Guidelines for EHR Documentation to Care 16 at 164–8.
Prevent Fraud’, (2007) Journal of AHIMA
78, no. 1: 65–68, http://library.ahima.org/ 49) Nursing and Midwifery Board of Australia,
xpedio/groups/public/documents/ahima/ http://www.nursingmidwiferyboard.gov.au/
bok1_033097.hcsp?dDocName= Codes-and-Guidelines.aspx.
bok1_033097. 50) Annesley v Earl of Anglesea (1743) 16 State
33) Ibid. Tr 1139.
34) Appendix C, Solutions, http:// 51) Attorney-General (UK) v Heinmann
library.ahima.org/xpedio/groups/public/ Publishers Australia Pty Ltd (1987) 10 IPR
documents/ahima/bok1_033095.hcsp 153 (NSW Court of Appeal).
?dDocName=bok1_033095. 52) http://www.nhmrc.gov.au/publications/
35) An interim site for the Office of the hrecbook/03_law/04.htm.
Australian Information Commissioner is 53) Breen v Williams [1995] HCA 63; (1996)
available at www.oaic.gov.au. The 186 CLR 71.
www.privacy.gov.au site will be maintained 54) Breen v Williams (SC(Eq) (NSW), Bryson J,
until a site incorporating all OAIC material No. 2363/94, 10 October 1994,
is established. unreported).
250
55) Ibid. Disclosure Standard, 2005, http://

56) Breen v Williams (1994) 35 NSWLR 522. www.health.gov.au/internet/safety/
57) Breen v Williams [1995] HCA 63; (1996) publishing.nsf/Content/a-zpublicationsm-
186 CLR 71. o/$File/OpenDisclosure_web.pdf.
58) Office of the Australian Information 64) ACSQHC, National Open Disclosure
Commissioner (OAIC), Information Privacy Standard Factsheet, 2005, http://
Principles under the Privacy Act 1988 (Cth), www.health.gov.au/internet/safety/
http://www.privacy.gov.au/materials/types/ publishing.nsf/Content/
infosheets/view/6541. C3D94BA657FEE027CA2573E00000B3FA
59) Ibid. /$File/opendisclfact.pdf at p 3.
60) OAIC, National Privacy Principle, http:// 65) ACSQHC, National Open Disclosure
www.privacy.gov.au/materials/types/ Standard, 2005, http://www.health.gov.au/
infosheets/view/6583. internet/safety/publishing.nsf/Content/a-
61) OAIC, Health Information and the Privacy zpublicationsm-o/$File/OpenDisclosure_
Act 1988 — A Short Guide for the Private web.pdf at p 12.
Health Sector (January 2002), http:// 66) Iedema R, Jorm C, Wakefield J, Ryan C and
www.privacy.gov.au/materials/types/ Dunn S, ‘Practising open disclosure: clinical
brochures/view/6522. incident communication and systems
62) OAIC, State and Territory Privacy Laws, improvement’, (2009) Sociology of Health &
http://www.privacy.gov.au/law/states. Illness 31(2) at 262–77.
63) Australian Council for Safety and Quality in
Health Care (ACSQHC), National Open
251
Chapter 8
Professional regulation of nurses
and midwives
Introduction
This chapter will describe the new Australian national registration and accreditation
scheme, a significant and ambitious national innovation that is the first of its kind
in a federated system in the world. There is much interest internationally in its pro
gress. Prior to 1 July 2010, each of the eight states and territories (also known as
jurisdictions) had its own registration scheme for a number of designated professional
groups, but certainly all jurisdictions had their own registration legislation for nursing
and midwifery. Overall there were more than 85 healthcare professional boards and
66 Acts of Parliament to govern the implementation of the legislation in each of the
jurisdictions. On 1 July 2010, the new National Registration and Accreditation
Scheme came into being as a result of passing legislation in the Queensland Parlia
ment. This legislation established 10 healthcare professional registration boards and
one overarching management organisation to support the boards and employ the
staff who work in the scheme. The Australian Health Practitioner Regulation Agency
(AHPRA) is the organisation responsible for the implementation of the National
Registration and Accreditation Scheme across Australia.1
Relevant legislation and structure of the scheme

AHPRA’s operations are governed by the Health Practitioner Regulation National
Law Act 2009 (Qld) (hereafter, the National Law), as in force in each state and
territory, which came into effect on 1 July 2010. Under this law, for the first
time in Australia, 10 healthcare professions are regulated by nationally consistent
legislation — this one Act of Parliament governs the full operation and imple
mentation of the National Registration and Accreditation Scheme across the
selected healthcare professions, including nursing and midwifery. The selected
professions to date are chiropractors, dental care (including dentists, dental hygien
ists, dental prosthetists and dental therapists), medical practitioners, nurses and
midwives, optometrists, osteopaths, pharmacists, physiotherapists, podiatrists and
psychologists. From 1 July 2012, four new professions will join the National Reg
istration and Accreditation Scheme — Aboriginal and Torres Strait Islander health
253
practitioners, Chinese medicine practitioners, medical radiation practitioners and

occupational therapists.
The object of the National Law is set out in Part 1, section 3(1) of the Schedule
as follows:
… to establish a national registration and accreditation scheme for —
a) the regulation of health practitioners; and
b) the registration of students undertaking —
i) programs of study that provide a qualification for registration in a
health profession; or
ii) clinical training in a health profession.
The scheme also has a number of objectives, set out in section 3(2) as follows:
a) to provide for the protection of the public by ensuring that only health
practitioners who are suitably trained and qualified to practise in a
competent and ethical manner are registered; and
b) to facilitate workforce mobility across Australia by reducing the
administrative burden for health practitioners wishing to move between
participating jurisdictions or to practise in more than one participating
jurisdiction; and
c) to facilitate the provision of high quality education and training of health
practitioners; and
d) to facilitate the rigorous and responsive assessment of overseas-trained
health practitioners; and
e) to facilitate access to services provided by health practitioners in
accordance with the public interest; and
f ) to enable the continuous development of a flexible, responsive and
sustainable Australian health workforce and to enable innovation in the
education of, and service delivery by, health practitioners.
The traditional purpose of a professional regulatory scheme is to protect the
public — those presiding over disciplinary tribunals and committees for the purpose
of professional regulation are said to exercise a ‘protective jurisdiction’.2 However,
this scheme also has a number of other desirable objectives relating to workforce
mobility and flexibility. The system now works in the same way as the Australian
drivers’ licensing system — a person registers in one state but their licence enables
them to drive anywhere in Australia without having to apply for a new licence to
drive in each state in which they wish to travel. Similarly now, although a person
might register, say, with the Northern Territory State Board of the Nursing and
Midwifery Board of Australia (NMBA), they will be able to practise nursing and/
or midwifery in any jurisdiction in Australia. Thus, clearly the national scheme
should facilitate workforce mobility. It is simply a new development to have this
objective made explicit in a scheme that has traditionally been about protecting the
public — a process which has on occasion been argued to limit access to certain
professions and create monopolies.3
254
8 • Professional regulation of nurses and midwives
The National Registration and Accreditation Scheme is overseen by the Australian

Health Workforce Ministerial Council (Ministerial Council), whose purpose is to
direct the National Agency and National Board about policies to be applied.4 Direc
tions can include matters relevant to the policies, administrative processes, proce
dures or particular proposed accreditation standards or any amendments, but cannot
be about a particular person, qualification, application, notification or proceeding.
In addition, the Ministerial Council is required to approve registration standards
recommended by the National Board established for the particular healthcare pro
fession, but has the discretionary power to ask a National Board to review an
approved or proposed registration standard. The Ministerial Council is comprised
of each jurisdiction’s Health Minister and the Federal Health Minister.5
The Ministerial Council is supported by the Australian Health Workforce Advi
sory Council (Advisory Council), whose role is to provide independent advice to
the Ministerial Council about any matter relating to the National Scheme. However,
the advice cannot be about a particular person, qualification, application, notifica
tion or proceeding. It comprises seven members appointed by the Ministerial
Council — a Chairperson, plus three members with expertise in health and/or
education.6
As previously stated, the scheme is administered by AHPRA, which is overseen
by the Australian Health Practitioner Regulation Agency Management Committee.
This committee comprises at least five members: the Chairperson, two people with
expertise in health and/or education and training, and two with business or admin
istrative expertise. None is able to be a current or former registered health practi
tioner.7 The functions of AHPRA (inter alia) are set out in Box 8.1.
The structure of the new scheme is set out in Figure 8.1.
The National Boards

As of 1 July 2012, the four new boards mentioned above became operational. There
are 14 National Boards. As seen in Figure 8.1, AHPRA’s national office provides
support to the National Boards and the state, territory and regional offices provide
support to the corresponding local boards of the National Boards. The National
Board for nursing and midwifery is the Nursing and Midwifery Board of Australia
(NMBA). Because of the sheer numbers of nurses and midwives in Australia, the
NMBA has a committee of the National Board in each jurisdiction. These commit
tees are somewhat confusingly also called boards, but rather than have the powers
of NMBA, they are there to administer the National Law by delegation from
NMBA.8 In particular for nursing and midwifery, the state and territory boards
make registration and notification decisions about individual nurses and midwives.
The only exception is in New South Wales, where, under a co-regulatory model,
complaints (or notifications as they are called under the National Law), are managed
by a separate organisation known as the Health Professionals Council Authority
(HPCA). Complaints about nurses and midwives in New South Wales are reviewed
and determined by the Nursing and Midwifery Council of New South Wales, and
the HPCA, an administrative body of the Health Administration Corporation,
provides the administrative and secretarial support to each of the 10 New South
Wales councils in their primary role to protect the public. The councils themselves
255
BOX 8.1
FUNCTIONS OF THE AUSTRALIAN HEALTH PRACTITIONER
REGULATION AGENCY (AHPRA)9
• Provide administrative assistance and support to the National Boards and board
committees in exercising their functions
• In consultation with the National Board, develop and administer procedures, to
ensure the efficient and effective operation of the National Boards
• Establish procedures for the development of accreditation standards, registration
standards and codes and guidelines approved by the National Boards, to ensure
the national registration and accreditation scheme operates in accordance with
good regulatory practice
• Negotiate in good faith with, and attempt to come to an agreement with, each
National Board on the terms of a health profession agreement
• Establish and administer an efficient procedure for receiving and dealing with
applications for registration as a healthcare practitioner, and other matters
relating to the registration of registered healthcare practitioners
• In conjunction with National Boards, keep current and publicly accessible national
registers of registered healthcare professionals for each healthcare profession
• Keep a current and publicly accessible list of approved programs of study for each
healthcare profession
• Establish an efficient procedure for receiving and dealing with notifications/
complaints against persons who are or were registered healthcare practitioners
and persons who are students, including by establishing a national process for
receiving notifications/complaints about registered healthcare practitioners in all
professions
• Provide advice to the Ministerial Council in connection with the administration of
the national registration and accreditation scheme
• If asked by the Ministerial Council, give the Council assistance or information
reasonably required by the Council in connection with the administration of the
national registration and accreditation scheme
• Perform any other function given to the Agency by or under the National Law.
receive and process any complaints about registered healthcare professionals.10

HPCA staff are employed by the Director-General of NSW Health, to whom the
Director of the HPCA reports.11 The National Law governs the powers of the
National Boards. Their functions are set out in Box 8.2.
Principles of the new National Registration and

Accreditation Scheme
The new National Scheme has three guiding principles:
1) to operate in a transparent, accountable, efficient, effective and fair way;12
2) to set reasonable registration fees (having regard to the efficient and effective
operation of the scheme);13 and
256
Ministerial Council
Health Workforce AHPRA Agency

National Boards
Advisory Council Management Committee
Advice Support
Accreditation
National Committees Support AHPRA National Office
Authorities
Contract
State/Territory/Regional AHPRA State and

Support
Boards Territory Offices
Figure 8.1 Structure of the new scheme
BOX 8.2
FUNCTIONS OF THE NATIONAL BOARDS14
a) to register suitably qualified and competent persons in the health profession
and, if necessary, to impose conditions on the registration of persons in the
profession;
b) to decide the requirements for registration or endorsement of registration in
the health profession, including the arrangements for supervised practice in the
profession;
c) to develop or approve standards, codes and guidelines for the health profession,
including —
i) the approval of accreditation standards developed and submitted to it by an
accreditation authority; and
ii) the development of registration standards for approval by the Ministerial
Council; and
iii) the development and approval of codes and guidelines that provide guidance
to health practitioners registered in the profession;
d) to approve accredited programs of study as providing qualifications for
registration or endorsement in the health profession;
257
e) to oversee the assessment of the knowledge and clinical skills of overseas trained
applicants for registration in the health profession whose qualifications are not
approved qualifications for the profession, and to determine the suitability of the
applicants for registration in Australia;
f) to negotiate in good faith with, and attempt to come to an agreement with, the
National Agency on the terms of a health profession agreement;
g) to oversee the receipt, assessment and investigation of notifications about
persons who —
i) are or were registered as health practitioners in the health profession under
this Law or a corresponding prior Act; or
ii) are students in the health profession;
h) to establish panels to conduct hearings about —
i) health and performance and professional standards matters in relation to
persons who are or were registered in the health profession under this Law or
a corresponding prior Act; and
ii) health matters in relation to students registered by the Board;
i) to refer matters about health practitioners who are or were registered under
this Law or a corresponding prior Act to responsible tribunals for participating
jurisdictions;
j) to oversee the management of health practitioners and students registered in the
health profession, including monitoring conditions, undertaking and suspensions
imposed on the registration of the practitioners or students;
k) to make recommendations to the Ministerial Council about the operation of
specialist recognition in the health profession and the approval of specialties for
the profession;
l) in conjunction with the National Agency, to keep up-to-date and publicly
accessible national registers of registered health practitioners for the health
profession;
m) in conjunction with the National Agency, to keep an up-to-date national register
of students for the health profession;
n) at the Board’s discretion, to provide financial or other support for health
programs for registered health practitioners and students;
o) to give advice to the Ministerial Council on issues relating to the national
registration and accreditation scheme for the health profession;
p) if asked by the Ministerial Council, to give to the Ministerial Council the
assistance or information reasonably required by the Ministerial Council in
connection with the national registration and accreditation scheme;
q) to do anything else necessary or convenient for the effective and efficient
operation of the national registration and accreditation scheme;
r) any other function given to the Board by or under this Law.
258
3) to impose restrictions on practice only if necessary to ensure health services are

provided safely and of appropriate quality.15
The scheme is intended to provide uniformity by assuring consistent national

standards for registration and professional conduct; efficiency with the intended
reduction of ‘red tape’ and more streamlined and effective processing; and increased
collaboration through more sharing, learning and understanding between profes
sions. However, the concept of consistency is not intended to mean that ‘one size
fits all’. Despite a number of uniform requirements across the professions such as
mandatory professional indemnity insurance, mandatory continuing professional
development, a minimum English Language Standard, mandatory criminal record
and identity checks and mandatory notifications,16 there is still a degree of difference
in the way the professions impose their requirements.
The national registers

Under the new scheme there are now national online registers. These can be accessed
easily by the public to check a practitioner’s registration status, simply by entering
their name into a search engine and viewing the results.17 The search will confirm
that the person is registered — the word ‘registered’ is in the column ‘registration
status’, indicating they are legally able to practise — and identify whether there are
any ‘endorsements’, ‘conditions’, ‘notations’, ‘reprimands’ or ‘undertakings’ on their
registration. This does not apply to practitioners on the non-practising register, or
those whose registration is suspended, or those with a condition which stops them
from practising. However, health matters will not be recorded there. The five terms
above are derived from the National Law and are explained in a glossary on
the AHPRA website. The terms are defined for the purposes of this chapter in
Table 8.1.
For the first time ever, there are two separate registers for nursing and midwifery.
This means that a person can be registered as a nurse and not a midwife and vice
versa, although it is obviously quite possible to be registered as both. In addition,
a person can opt to be practising or non-practising for the first time nationally. This
means that people who wish to retain the title of registered nurse or midwife will
be able to do so for a nominal fee even when they are not intending to practise.18
However, if they wish to return to the practising register they would need to meet
the requirements for re-entry to practise, which means that (inter alia) they must
be able to demonstrate recency of practice.19 In addition to being registered as a
registered nurse, it is also possible to be registered as an enrolled nurse (either solely
or concurrently) and endorsed as a nurse practitioner (which would primarily
require registration as a registered nurse). In addition to being registered as a
midwife, it is also possible to be endorsed as a midwife practitioner and notated
and endorsed as an eligible midwife. Both these qualifications require the applicant
primarily to be registered as a midwife. The concept of the midwife practitioner is
a carry-over from some but not all of the old state-based schemes and is not the
preferred title of the Australian College of Midwives (ACM) for advanced midwifery
practice in Australia.20 Instead the ACM have worked with the Commonwealth
Government and other stakeholders to develop the title and role of the eligible
259
midwife. This is discussed later in this chapter in a section exclusively focusing on

the regulation of midwives.
Table 8.1
Definition of key terms that may appear on the public register in relation to a
practitioner’s registration21
Key term Definition from AHPRA Glossary
Endorsement An endorsement of registration recognises that a person has additional
qualifications or expertise in particular areas. There are a number of different
types of endorsement available under the National Law:
• endorsement for scheduled medicines
• endorsement as a nurse practitioner
• endorsement as a midwife practitioner
• endorsement for acupuncture
• endorsement for the approved area of practice.
Condition A condition may be imposed by the National Board or an adjudication body on
the registration of a practitioner or student, or on an endorsement. Examples of
conditions include:
• a condition requiring the practitioner to complete specified further education
or training within a specified period
• a condition requiring the practitioner to undertake a specified period of
supervised practice
• a condition requiring the practitioner to do, or refrain from doing, something in
connection with the practitioner’s practice
• a condition requiring the practitioner to manage the practitioner’s practice in a
specified way
• a condition requiring the practitioner to report to a specified person at
specified times about the practitioner’s practice
• a condition requiring the practitioner not to employ, engage or recommend a
specified person, or class of persons.
Notation Records a limitation on the practice of a registrant.
Reprimand A formal rebuke in relation to conduct made by an adjudication body. A
reprimand is a chastisement for conduct and must be displayed on the Registers
of Practitioners.
Undertaking An undertaking is given by a practitioner and accepted by the National Board to
limit the practice of the profession in the public interest. Also see the definition
of ‘condition’.
Student registration
In addition to the practising registers for qualified nurses, there are now registers
for students undertaking courses leading to qualification as registered healthcare
practitioners. Under the National Law, students have been registered from 2011.
The only student group not to be registered are psychology students, because the
Psychology Board of Australia has determined to register these students through
provisional registration. There are no fees for student registration.
Any student who is currently enrolled in an approved program of study and is
not already registered does not need to apply for registration personally, as AHPRA
works directly with education providers to register all relevant students. The other
group who require student registration are those who are not enrolled in an approved
260
program of study, but are undertaking a clinical placement where they do not hold
registration in that profession. In this case, it is also the responsibility of the educa
tion provider (or the person or organisation providing the clinical placement), and
not the individual student, to advise AHPRA of which students need to be
registered.
AHPRA advises that the definition of an ‘education provider’ in the National
Law is broad. It includes education providers delivering board-approved programs
of study leading to registration, and health services and other organisations, and in
some cases individuals, who provide clinical experience placements for people who
are undertaking clinical training but are not enrolled in a board-approved program
of study leading to registration and do not hold registration in Australia in that
profession. This includes students from overseas.22
The nursing and midwifery board of Australia (NMBA)

The NMBA was established on 1 July 2009 and commenced operation on 1 July
2010. It comprises one practitioner member from each of the jurisdictions (from
among whom the Chair is appointed) and four community members. All members
hold office for a 3-year term and thus completed their first term on 1 July 2012.
All are free to stand for re-election and may serve for a total of three terms before
having to step down. The functions of the National Boards are set out in Box 8.2
and do not differ between boards, although not all boards need to exercise all func
tions. At the time of writing NMBA has three sub-committees that provide the
infrastructure for the determinations of the NMBA — the Finance and Governance
Committee, the Accreditation Committee and the Policy Committee. As a point
of clarification that will be discussed in more detail later, the Accreditation Com
mittee is not the accrediting body for nursing and midwifery education programs.
That role is now undertaken by an independent authority — the Australian Nursing
and Midwifery Accreditation Council (ANMAC).23 NMBA meets monthly and is
supported in its work by a number of AHPRA staff, including an Executive Officer
and a number of designated policy support officers. In addition, NMBA works
closely with other senior executive AHPRA staff, both at national and jurisdictional
levels. NMBA functions on a hub-and-spoke model, with NMBA providing the
strong policy ‘hub’ and providing oversight and endorsement to the registration and
notification decisions of its state and territory boards. In turn, NMBA’s state and
territory boards provide the strong operational ‘spokes’ and implement the codes,
policies and guidelines developed by the NMBA.
Codes of conduct and ethics and competency standards

The NMBA sets standards for registration and endorsement and also provides
guidelines and advice through its website. The NMBA has also endorsed the previ
ous national codes of conduct and ethics for nurses and midwives and the four sets
of competency standards for enrolled nurses, registered nurses, registered midwives
and nurse practitioners developed by the former peak regulatory body, the Austra
lian Nursing and Midwifery Council (ANMC). These were formerly known as the
ANMC Codes and Competency standards but are now badged as the NMBA Codes
and Competency standards and are available on the NMBA website.24 Several of
261
these former ANMC documents, key pieces of regulatory infrastructure, are due
for review and a program of work to undertake this has been agreed by the NMBA.
It will be important to keep a watching brief on the website to engage in commen
tary on the existing documents and to see the new documents when they are
developed.
Standards for initial registration
Over the past 2 years the NMBA has been required to set a number of standards
under the National Law to enable applicants to register. Nurses and midwives who
were already registered within their respective jurisdictions transitioned across to
the new national scheme, but those who had been off the register and wished to
renew, and those who were applying for the first time either because they had just
completed an approved course of study in Australia or because they were applying
from overseas, are required to meet the new national registration eligibility criteria
including certain registration standards, some of which, as already stated, are generic
requirements across all professions.
Section 53 of the National Law states that an individual is qualified for general
registration in a health profession if —
a) the individual holds an approved qualification for the health profession;
or
b) the individual holds a qualification the National Board established for the
health profession considers to be substantially equivalent, or based on
similar competencies, to an approved qualification; or
c) the individual holds a qualification, not referred to in paragraph (a) or
(b), relevant to the health profession and has successfully completed an
examination or other assessment required by the National Board for the
purpose of general registration in the health profession; or
d) the individual —
i) holds a qualification, not referred to in paragraph (a) or (b), that under
this Law or a corresponding prior Act qualified the individual for
general registration (however described) in the health profession; and
ii) was previously registered under this Law or the corresponding prior
Act on the basis of holding that qualification.25
However, in addition to being qualified for registration, a person must meet a

number of other requirements to be eligible for registration. These are set out in
section 52 of the National Law as follows:
1) An individual is eligible for general registration in a health profession
if —
a) the individual is qualified for general registration in the health profes
sion; and
b) the individual has successfully completed —
i) any period of supervised practice in the health profession required
by an approved registration standard for the health profession; or
262
ii) any examination or assessment required by an approved registration

standard for the health profession to assess the individual’s ability
to competently and safely practise the profession; and
c) the individual is a suitable person to hold general registration in the
health profession; and
d) the individual is not disqualified under this Law or a law of a
co-regulatory jurisdiction from applying for registration, or being
registered, in the health profession; and
e) the individual meets any other requirements for registration stated in
an approved registration standard for the health profession.26
As can be seen under section 52(1)(e), there is an expectation that the profession
will set one or more registration standards and that they will be approved by the
Ministerial Council. NMBA has developed five registration standards, in addition
to the obvious requirement for an approved qualification in nursing or midwifery,
as follows:
1) the continuing professional development (CPD) registration standard;
2) the criminal history registration standard;
3) the English language skills (ELS) registration standard;
4) the professional indemnity insurance (PII) registration standard; and
5) the recency of practice (RoP) registration standard.27
Each of these standards needs to be met for a nurse or midwife to be eligible for
registration. Some standards, such as the criminal history registration standard, are
identical across all professions, whereas the CPD, ELS, PII and RoP, whilst being
requirements for every profession, may differ in their actual content. Currently the
ELS has an agreed minimum standard for all professions.28 The CPD, PII and RoP
standards are discussed briefly below but it is important for applicants to check the
NMBA website regularly as these registration standards are frequently reviewed and
updated as new research and information becomes available. It is also important to
be aware that these are standards for registration as a nurse or midwife and are not
to be confused with standards for endorsement as a nurse practitioner (NP) or
notation and endorsement as an Eligible Midwife (EM), both of which are discussed
separately and both of which take the requirements for eligibility for registration as
the first step, after which the requirements for NP and EM are cumulative.
The continuing professional development registration standard

Prior to the introduction of the National Scheme, all jurisdictions except New South
Wales had some requirement for continuing professional development, but these
have now been standardised nationally. The requirements are the same for enrolled
nurses (ENs), registered nurses (RNs) and registered midwives (RMs), although
clearly the content will differ. This standard applies to all nurses and midwives who
are on the register, but not to nurses and midwives applying to go onto the register.
The requirements of the CPD standard are set out in Box 8.3.
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BOX 8.3
REQUIREMENTS OF THE CONTINUING PROFESSIONAL
DEVELOPMENT REGISTRATION STANDARD29
1) Nurses on the nurses’ register will participate in at least 20 hours of continuing
nursing professional development per year.
2) Midwives on the midwives’ register will participate in at least 20 hours of
continuing midwifery professional development per year.
3) Registered nurses and midwives who hold scheduled medicines endorsements or
endorsements as nurse or midwife practitioners under the National Law must
complete at least 10 hours per year in education related to their endorsement.
4) One hour of active learning will equal one hour of CPD. It is the nurse or midwife’s
responsibility to calculate how many hours of active learning have taken place. If
CPD activities are relevant to both nursing and midwifery professions, those
activities may be counted in each portfolio of professional development.
5) The CPD must be relevant to the nurse or midwife’s context of practice.
6) Nurses and midwives must keep written documentation of CPD that
demonstrates evidence of completion of a minimum of 20 hours of CPD per year.
7) Documentation of self-directed CPD must include dates, a brief description of the
outcomes, and the number of hours spent in each activity. All evidence should be
verified. It must demonstrate that the nurse or midwife has:
a) identified and prioritised their learning needs, based on an evaluation of their
practice against the relevant competency or professional practice standards;
b) developed a learning plan based on identified learning needs;
c) participated in effective learning activities relevant to their learning needs;
d) reflected on the value of the learning activities or the effect that participation
will have on their practice.
8) Participation in mandatory skills acquisition may be counted as CPD.
9) The Board’s role includes monitoring the competence of nurses and midwives;
the Board will therefore conduct an annual audit of a number of nurses and
midwives registered in Australia.
Each of the registration standards is set out in a similar format and contains defi
nitions of relevant key terms. For the CPD standard, an explanation of the context
of practice is included and is defined as:
… the conditions that define an individual’s nursing or midwifery practice.
These include the type of practice setting (for example, healthcare agency,
educational organisation, private practice); the location of the practice
setting (for example, urban, rural, remote); the characteristics of patients or
clients (for example, health status, age, learning needs); the focus of nursing
and midwifery activities (for example, health promotion, research,
management); the complexity of practice; the degree to which practice is
autonomous; and the resources that are available, including access to other
healthcare professionals.30
264
In addition to the actual standard, explanatory notes are listed in the ‘Frequently
Asked Questions’ (FAQ) section of the NMBA website and were developed
specifically to assist nurses in understanding the requirements of the CPD
standard.31
The professional indemnity insurance registration standard

Under the new scheme, all healthcare practitioners are required to state on their
application and renewal forms that they will not practise their profession unless
they have appropriate PII arrangements in place. PII may be obtained in two main
ways. First, an employer may agree to indemnify the employee as a part of their
employment agreement and as a result of the doctrine of vicarious liability (see
Chapter 3 for further discussion on this topic). Second, PII may be purchased as a
commercial product, in the same way as any other form of insurance, for nurses
and midwives whose employment status indicates that they are not indemnified
through the doctrine of vicarious liability. The requirements of the PII standard are
set out in Box 8.4.
BOX 8.4
REQUIREMENTS OF THE PROFESSIONAL INDEMNITY
INSURANCE ARRANGEMENTS REGISTRATION STANDARD32
1) Nurses and midwives, whether employed or self-employed, unless exempted
under the National Law, require PII arrangements which cover the full scope of
their practice.
2) When applying for registration or renewal of registration, nurses and midwives
will be required to declare that they will not practise in their profession unless
appropriate PII arrangements are, or will be, in place while they practise nursing
or midwifery.
3) Nurses and midwives in different types of practice will require different levels of
PII cover, according to their particular level of risk. The following PII cover should
be considered:
a) civil liability cover;
b) unlimited retroactive cover; and
c) run-off cover.
4) It is the responsibility of nurses and midwives to understand the nature of the
cover under which they are practising.
5) Self-employed nurses and midwives are required to have run-off cover, except
those midwives practising privately who are exempt under the National Law.
6) Nurses and midwives who hold insurance cover in their own name are required
to retain documentary evidence of their insurance arrangements and to provide it
to the Board on request.
7) Self-employed midwives must provide full disclosure of their level of PII to their
clients.
265
PII arrangements are defined in the PII standard as:

… arrangements that secure, for the practitioner’s professional practice,
insurance from civil liability incurred by, or loss arising from, a claim that is
made as a result of a negligent act, error or omission in the conduct of the
practitioner. This type of insurance is available to practitioners and
organisations across a range of industries and covers the costs and expenses
of defending a legal claim, as well as any damages payable. Some
government organisations under policies of the owning government are
self-insured for the same range of matters.33
PII for privately practising midwives is particularly complex and is discussed later
in this chapter in a section exclusively focusing on the regulation of midwives. The
PII standard applies to registered and enrolled nurses; registered nurses endorsed as
nurse practitioners; and registered midwives. It does not apply to students of nursing
and midwifery; nurses and midwives who have non-practising registration and
registered midwives who are exempted under the National Law.34 The most recent
standard on PII has only been in force since January 2012 and will be subject to
review, so it is important that nurses and midwives check the website regularly to
obtain the most current advice on these matters — it is a relatively recent develop
ment for nursing and midwifery regulatory authorities to become involved in advice
about PII. However, in its document, Guidelines for Professional Indemnity Insurance
Arrangements for Midwives, the NMBA makes the following observations, which are
equally applicable to registered and enrolled nurses:
Professional indemnity insurance provides midwives with insurance from
civil liability. This insurance generally includes cover for legal claims for
compensation and associated expenses arising from the practice of
midwifery. The Board notes that PII arrangements, particularly those
provided by employers, may not provide cover for matters of a disciplinary
character, which do not usually lead to awards of compensation to patients,
clients or other persons who have suffered detriment as a result of a
practitioner’s action. These matters may involve costs for individual
practitioners. The Board does not require practitioners to have insurance
cover for matters which do not involve potential of compensation against a
practitioner. Examples are unlawful, unauthorised, regulatory or disciplinary
matters including breaches of professional codes or ethics. However, the
Board recommends that practitioners consider whether they have this cover
as part of their PII arrangements, whether as an individual or provided by
an employer and if not, whether they wish to obtain it.35
The recency of practice (RoP) registration standard

The RoP standard is a requirement which was in force in most jurisdictions except
New South Wales in some form prior to national registration. It requires nurses and
midwives to have kept up-to-date with their practice for a minimum of 3 months
full-time equivalent within the past 5 years. This seems to be a sensible means of
ensuring that nurses and midwives stay in touch with professional practice. However,
national registration has meant that a single standard for RoP is now being applied,
which has led to changes for nurses and midwives in some jurisdictions and, on
266
occasion, some unhappiness about the requirements.36 This standard applies to

nurses and midwives seeking registration, endorsement of registration or renewal of
registration.37 It does not apply to recent graduates from nursing or midwifery
programs in Australia applying for registration for the first time; persons holding
student registration; or nurses or midwives holding or applying for non-practising
registration. ‘Practice’ is defined very broadly under the RoP standard as:
… any role, whether remunerated or not, in which the individual uses their
skills and knowledge as a nurse or midwife. For the purposes of this
registration standard, practice is not restricted to the provision of direct
clinical care. It also includes working in a direct nonclinical relationship
with clients, working in management, administration, education, research,
advisory, regulatory or policy development roles, and any other roles that
impact on safe, effective delivery of services in the profession and/or use of
their professional skills.38
At the time of writing, other professions, particularly medicine, are contesting this
definition of practice as being too broad, and an alternative definition is being pro
posed by some of the other boards that limits practice only to clinical work. However,
to date, the NMBA has not joined this debate and has maintained the definition
reproduced above. The requirements of the RoP standard are set out in Box 8.5.
BOX 8.5
REQUIREMENTS OF THE RECENCY OF PRACTICE
REGISTRATION STANDARD39
Nurses and midwives must demonstrate, to the satisfaction of the Board, that they
have undertaken sufficient practice, as defined in (2) below, in their professions within
the preceding five years to maintain competence.
2) Nurses and midwives will fulfil the requirements relating to recency of practice if
they can demonstrate one, or more of the following:
a) practice in their profession within the past five years for a period equivalent to
a minimum of three months full time;
b) successful completion of a program or assessment approved by the Board; or
c) successful completion of a supervised practice experience approved by the
Board.
3) Practice hours are recognised if evidence is provided to demonstrate:
a) the nurse or midwife held a valid registration with a nursing or midwifery
regulatory authority in the jurisdiction (either in Australia or overseas) when
the hours were worked; or
b) the role involved the application of nursing and/or midwifery knowledge and
skills; or
c) the time was spent undertaking postgraduate education leading to an award
or qualification that is relevant to the practice of nursing and/or midwifery.
4) Extended time away from practice due to illness or any type of leave will not be
counted as practice.
267
The requirements of section 2 of the RoP standard are further explained in its
FAQs section40 and are about to be even further elaborated in a Re-entry to Practice
Policy that has completed its consultation rounds.41 However, as indicated, this is
currently a contentious area of regulation and the reader needs to keep abreast of
the most recent developments.
Endorsements under section 94 of the National Law

All of the above standards relate to nursing and midwifery entry requirements, but
there are also a number of other registration standards that relate to specific catego
ries of registered nurses and midwives and impose requirements on them over and
above those for registration. The first is the Endorsement for Scheduled Medicines,
established under section 94 of the National Law, that states as follows:
1) A National Board may, in accordance with an approval given by the
Ministerial Council under section 14, endorse the registration of a
registered health practitioner registered by the Board as being qualified to
administer, obtain, possess, prescribe, sell, supply or use a scheduled
medicine or class of scheduled medicines if the practitioner —
qualification; and
endorsement.
Note. The endorsement of a health practitioner’s registration under this section
indicates the practitioner is qualified to administer, obtain, possess, prescribe,
sell, supply or use the scheduled medicine or class of medicines specified in
the endorsement but does not authorise the practitioner to do so. The authori
sation of a health practitioner to administer, obtain, possess, prescribe, sell,
supply or use scheduled medicines in a participating jurisdiction will be pro
vided for by or under another Act of that jurisdiction.
Health practitioners registered in certain health professions will be authorised to
administer, obtain, possess, prescribe, sell, supply or use scheduled medicines by or
under an Act of a participating jurisdiction without the need for the health practi
tioners to hold an endorsement under this Law:
2) An endorsement under subsection (1) must state —
a) the scheduled medicine or class of scheduled medicines to which the
endorsement relates; and
b) whether the registered health practitioner is qualified to administer,
obtain, possess, prescribe, sell, supply or use the scheduled medicine or
class of scheduled medicines; and
c) if the endorsement is for a limited period, the date the endorsement
expires.
268
The NMBA has issued two endorsements under section 94. The first is the
Endorsement for Scheduled Medicines for Registered Nurses Registration Stan
dard.42 This standard originated as an interim standard developed to address a need
for nurses in rural and isolated practice in Queensland to obtain, supply and admin
ister Schedule 2, 3, 4 and 8 medicines. It was not intended to be reviewed until
12 months after its release, but it is currently under review to develop a nationally
consistent standard that addresses the issues of high complexity work in areas of
low supervision where registered nurses are required to obtain, supply and admin
ister Schedule 2, 3, 4 and 8 medicines for nursing practice. As indicated in the note
in section 94 above, even where a registered nurse is endorsed as being qualified
under this standard, the relevant legislation to authorise the endorsed registered
nurse to undertake those activities still resides with the employing jurisdiction,
usually under relevant drugs and poisons legislation. The second endorsement under
section 94 is the Endorsement for Scheduled Medicines for Midwives Registration
Standard.43 This endorsement is discussed later in this chapter in the special section
on the regulation of midwifery.
Endorsement as a nurse practitioner under section 95

For the first time in Australia under the new National Scheme there is a nationally
consistent standard for endorsement as a nurse practitioner (NP).44 Section 95 of
the National Law states that:
1) The Nursing and Midwifery Board of Australia may endorse the registration
of a registered health practitioner whose name is included in the Register of
Nurses as being qualified to practise as a nurse practitioner if the practitioner —
qualification; and
endorsement.
2) An endorsement under subsection (1) must state —
a) that the registered health practitioner is entitled to use the title ‘nurse
practitioner’; and
b) any conditions applicable to the practice by the registered health
practitioner as a nurse practitioner.
Section 95(1)(b) provides for the NMBA to develop a registration standard rel
evant to the endorsement — it is the Endorsement as a Nurse Practitioner Registra
tion Standard.45 The standard applies to all applicants seeking endorsement as a
nurse practitioner. The requirements of the standard are set out in Box 8.6.
As with the provisions under section 94, the authority to prescribe medicines is
conferred under the relevant drugs and poisons legislation of the Australian state
or territory in which the NP practises. The conditions under which each authority
is granted and the scope of that authority will depend on the requirements of the
269
BOX 8.6
REQUIREMENTS OF THE ENDORSEMENT AS A NURSE
PRACTITIONER REGISTRATION STANDARD46
To be eligible for endorsement as a nurse practitioner, the registered nurse must be
able to provide evidence to demonstrate all of the following:
a) current general registration as a registered nurse with no conditions on
registration relating to unsatisfactory professional performance or unprofessional
conduct;
b) the equivalent of three (3) years’ full-time experience in an advanced practice
nursing role, within the past six (6) years from the date when the complete
application seeking endorsement as a nurse practitioner is received by the Board;
c) successful completion of a Board-approved nurse practitioner qualification at
Master’s level or education equivalence as determined by the Board;
d) compliance with the Board’s National Competency Standards for the
Nurse Practitioner which can be accessed from the Board’s website at
www.nursingmidwiferyboard.gov.au under Codes, Guidelines and Statements; and
e) compliance with the Board’s registration standard on continuing professional
development.
specific legislation in each state or territory. These may range from a blanket author
ity limited by the practitioner’s scope of practice, to an authority based on a for
mulary or protocol, or related to a specific context of practice (such as only being
applicable in a certain practice setting). To specify a distinct formulary of medicines
for each area of specialty of NPs is outside the provisions of the National Law.
However, clearly, failure of a nurse practitioner to practise and prescribe within this
scope of practice will result in the NMBA taking disciplinary action.47
The advice above is taken from a set of guidelines developed by the NMBA
explaining (inter alia) the processes and evidence required both for initial and
ongoing endorsement as a NP.48 Previously, each jurisdiction had its own specific
processes and requirements to enable a person to be recognised as a NP and the
process of developing a standard across all jurisdictions has been quite complex.
The NMBA has developed a rigorous NP Safety and Quality Framework (NP SQF)
that integrates the requirements for NPs to provide a robust regulatory framework
both for the public and also for the NPs themselves. In addition, it ensures that
NPs who are in private practice and have access to the Medicare Benefits Schedule
and the Pharmaceutical Benefits Scheme have clarity and support to practise in their
roles with safety and quality. The elements of the NP SQF are as follows:
• scope of practice;
• codes of professional conduct and ethics;
• national competency standards;
• annual declaration;
• NMBA audit process;
270
• mandatory reporting;
• notification and management of performance, conduct or health matters;
• co-regulatory requirements of Medicare and the NMBA;
• prescribing authority and compliance with relevant state and territory
legislation, and collaborative arrangements.49
In relation to the scope of practice of NPs, the NMBA has issued a Position
Statement50 which clarifies expectations in relation to recognising the extent and
limitations of their scope of practice. The statement provides important advice for
NPs (and indeed, can to some extent be extrapolated to all nurses and midwives in
relation to scope of practice).
The NMBA recognises that nurses obtain and develop specialist qualifications
and expertise throughout the course of their careers. It is an expectation that nurse
practitioners are competent in the specific area of practice required to meet the
needs of their client group. Nurses seeking endorsement as NPs are expected to
have completed 3 years’ advanced practice in their specific area, and in accordance
with the Safety and Quality Framework (SQF) included in the guidelines on
endorsement as a nurse practitioner (published at www.nursingmidwiferyboard.gov.au
under Codes, Guidelines and Statements) before applying for endorsement. Employ
ers should be aware of the scope of practice of nurse practitioners and ensure that
they are employed appropriately.
The NMBA wishes to advise that, given the dynamic nature of healthcare and
the evolving role of nurse practitioners, a scope of practice notation will not be
included on the endorsement of nurse practitioners. In addition to the guidelines
on endorsement mentioned above, the board has approved a registration standard
on endorsement as a nurse practitioner (published at www.nursingmidwiferyboard.
gov.au under Registration Standards) to provide clear direction and guidance to
ensure that all nurse practitioners are practising safely and to a professional standard
that protects the health and safety of the public.51
Nurse practitioners’ access to the Australian Government

Medicare Benefits Schedule (MBS) and the Pharmaceutical
Benefits Scheme (PBS)
Endorsement as a nurse practitioner with the NMBA confers eligibility to apply for
approval by the Health Minister as a ‘participating nurse practitioner’ under the
Health Legislation Amendment (Midwives and Nurse Practitioners) Act 2010 (Cth)
Schedule 1, item 7, subsection 3(1). A participating nurse practitioner has access
to the Australian Government Medicare Benefits Schedule (MBS) and, where the
nurse practitioner has an authority to prescribe, the Pharmaceutical Benefits Scheme
(PBS). These arrangements will enable patients of nurse practitioners who are
approved MBS and/or PBS participants, to access certain MBS rebates and PBS
prescriptions. The following information is taken from the NMBA’s NP SQF52 and
explains access to the MBS and PBS and the new collaborative arrangements that
are in place under the Health Legislation Amendment (Midwives and Nurse Practi-
tioners) Act 2010 (Cth).
271
The nurse practitioner needs to apply to Medicare Australia for a provider

and/or prescriber number. The discretion to authorise access to the MBS
and PBS remains with Medicare Australia and the process of authorisation
through Medicare is a process additional to the Board’s endorsement
process. As part of the co-regulatory requirements of the Board and
Medicare Australia, any issues related to conduct, performance or health
that may impact on the performance of an individual nurse practitioner, as
a prescriber or provider of Medicare services or medicines, is notified by
either co-regulatory body to the other. For example, if Medicare Australia
has cause to investigate a particular provider, the Board will be notified of
that investigation and the other way around. From a co-regulatory
perspective, Medicare Australia continues its important monitoring and
review role. This is designed to ensure services and medicines provided by
any health professional with access to the MBS and PBS are effective,
efficient, appropriate and within benchmarking limits. However, should
there be an issue related to performance, health or conduct of a nurse
practitioner, the Board is the professional regulatory authority to which a
notification will be referred. The Board will oversee the assessment of the
notification and any subsequent investigation or disciplinary action.
All nurse practitioners are required to engage in clinical collaboration in
compliance with the National Competency Standards for the Nurse
Practitioner (ANMC 2005; adopted NMBA 2010). However, in addition to
this pre-existing requirement, nurse practitioners who are authorised under
the Health Legislation Amendment (Midwives and Nurse Practitioners) Act
2010 (Cth), and who are assigned a Medicare provider number or PBS
prescriber number have further requirements for collaboration as described
in sections 5–7 of the National Health (Collaborative Arrangements for Nurse
Practitioners) Determination 2010 (Cth). These specific collaborative
arrangements are available online from the Commonwealth of Australia Law
website www.comlaw.gov.au.53
The regulation of midwifery

Background
For the first time in Australia midwifery has been recognised nationally as a profes
sion distinct from, but professionally aligned with, nursing. This is congruent with
many other developed countries that recognise both direct entry and post-graduate
pathways into nursing and midwifery.54 The major difference in the new scheme in
Australia is that there are now separate registers for nursing and midwifery, which
means that people who have a sole qualification in midwifery are able to register
solely as a midwife. Formerly in some jurisdictions it was not possible to do this,
and it created difficulties for overseas qualified midwives who did not have a nursing
qualification, but who may otherwise have wished to practise midwifery in Austra
lia. Some Australian universities now offer direct entry midwifery programs and
there is evidence from countries with direct entry midwife training that show higher
272
midwife retention than where nurse training is required first.55 In addition, the
option to be on the non-practising register will mean that, from a workforce per
spective, there will be a clear idea of the size of the practising midwifery workforce
for the first time, rather than simply having a sense of how many people hold a
midwifery qualification.
The requirements to be eligible to register as a midwife are exactly the same as
to be eligible to register as a nurse: namely, the application must meet the eligibility
requirements set out under section 52 of the National Law. The only difference is
that the approved program of study referred to in section 53 is in midwifery, rather
than nursing, and that the recency of practice relates to midwifery practice. Upon
renewal, the requirements for continuing professional development also need to
relate to a midwifery context of practice, although if a midwife is also registered as
a nurse and any CPD undertaken for nursing also relates to midwifery practice, it
can be claimed for both contexts.56
Where the major differences occur are in relation to the Registration Standard
for Eligible Midwives57 established under section 38(2) of the National Law and
the Registration Standard for Endorsement for Scheduled Medicines for Midwives
under section 94.58 There has not been a great deal of support from the midwifery
profession for the concept of endorsing the midwife practitioner, as philosophically
this did not seem to fit with the midwifery model of practice.59 However, in 2008,
the Federal Government, as a result of a major review of maternity services in
Australia,60 recommended maternity reform legislation to provide MBS and PBS
benefits, as well as professional indemnity insurance, for services provided by appro
priately qualified and experienced midwives, known as eligible midwives (EMs).
The arrangements did not cover planned homebirths. The nature of the access to
MBS and PBS was introduced at the same time as the access reforms for nurse
practitioners, and some of the provisions are very similar. However, there are some
specific differences which relate particularly to the process for notating EMs, the
scheduled medicines endorsement for EMs, the PII requirements for privately
practising midwives (PPMs), and the PII exemptions for PPMs offering homebirths.
Each of these matters is discussed below in turn.
Eligible Midwives Registration Standard under section 38(2)

It is important to understand that the National Law makes no reference to eligible
midwives, as they were a creation of the Maternity Services Review. However,
because they are to have access to MBS and PBS, it was considered necessary that
they should be regulated through the professional regulatory mechanism prior to
endorsement. This requires the midwife to be recognised as an EM through a nota
tion on their registration. The notation reads as follows:
An eligible midwife competent to provide pregnancy, labour, birth and
postnatal care and qualified to provide the associated services and order
diagnostic investigations required for midwifery practice, in accordance with
relevant State and Territory legislation.61
Notation as an EM applies to a class of, rather than all, registered midwives.
Having a notation made on the Register of Midwives as an eligible midwife indicates
273
(as stated above) that the applicant is qualified to provide pregnancy, labour, birth
and postnatal care to women and their infants. It is the fact that this includes the
capacity to provide associated services and order diagnostic investigations appropri
ate to the eligible midwife’s scope of practice that makes the notation critical. All
midwives should be able to ‘provide pregnancy, labour, birth and postnatal care’ to
women and their infants: that is the scope of practice of any midwife. However,
not all midwives practice to their full scope. Some choose, after qualifying, only to
work in antenatal or postnatal or a labour ward. This means they do not have the
opportunity to provide care within a continuity of care model for a woman and her
child. In addition, the NMBA currently makes a distinction between being notated
as an EM and being endorsed to prescribe scheduled medicines in accordance with
relevant state and territory legislation. A notation as an EM may provide access to
MBS but access to PBS is only available once an endorsement for scheduled medi
cines under section 94 has been attained. The section 94 endorsement is discussed
further on in this chapter. The requirements for registration as an EM are set out
in Box 8.7.
A number of factors regarding the eligible midwife requirements are worthy of
note. First, a newly graduated beginning midwife cannot be an EM, since EMs
require the equivalent of 3 years’ full-time midwifery experience after initial
registration as a midwife. Second, they need to be currently competent to provide
BOX 8.7
REQUIREMENTS FOR REGISTRATION AS AN
ELIGIBLE MIDWIFE62
To be entitled to be identified as an eligible midwife, a midwife must be able to dem-
onstrate, at a minimum, all of the following:
a) current general registration as a midwife in Australia with no restrictions on
practice;
b) midwifery experience that constitutes the equivalent of three years’ full-time post
initial registration as a midwife;
c) current competence to provide pregnancy, labour, birth and postnatal care to
women and their infants;
d) successful completion of an approved professional practice review program for
midwives working across the continuum of midwifery care;
e) 20 additional hours per year of continuing professional development relating to
the continuum of midwifery care;
f) formal undertaking to complete within 18 months of recognition as an eligible
midwife, or the successful completion of:
i) an accredited and approved program of study determined by the Board to
develop midwives’ knowledge and skills in prescribing; or
ii) a program that is substantially equivalent to such an approved program of
study, as determined by the Board.
274
midwifery care in all aspects of midwifery. The ‘approved professional practice

review program’ is not necessarily a formal qualification such as a Masters degree
— unlike the requirement for NP endorsement — but again, it seeks to assess
midwives to be competent across the continuum of care. Indeed, a successful
outcome from (d), in Box 8.7, is considered to be evidence of (c).63
The ‘approved professional practice review program’ is defined as:
… a formal professional practice review program for midwives approved by
the Nursing and Midwifery Board of Australia (the Board), designed to
review evidence of performance over time across the continuum of
midwifery care, including self-assessment against the Code of Professional
Conduct for Midwives in Australia, the Code of Ethics for Midwives in
Australia, the Australian Nursing and Midwifery Council (ANMC) National
Competency Standards for the Midwife, the Australian College for Midwives
(ACM) National Midwifery Guidelines for Consultation and Referral, and
may include clinical review based on information detailing de-identified
client data on outcomes, including adverse events and complaints;
consultation, review and referral to other health professionals; review of
client satisfaction; other forms of professional review and assessment (by
employers, professional organisations and peers); ongoing professional
development across the continuum of midwifery care; and timely and
correct provision of maternity data to jurisdictional data collections. A list
of approved midwifery practice review programs will be published on the
Board’s website.64
Note that (e) — the CPD requirement — asks for 20 additional hours per year
of continuing professional development relating to the continuum of midwifery
care. This additional requirement is double the 10 hours expected of NPs in their
CPD per year. The requirement for 20 hours was determined by the NMBA in
consultation with midwifery professional leaders and was in response to the fact
that there is no requirement for a higher degree to become an EM, unlike the NP
endorsement under section 95. Finally, (f ) sets up an undertaking to complete ‘an
accredited and approved program of study determined by the Board to develop
midwives’ knowledge and skills in prescribing’, or its equivalent, within 18 months
of notation as an EM. This requirement is purely pragmatic as, at the time of
developing the registration standard, there were no available Board-approved
courses. At the time of writing, the first programs are under assessment with the
new national accreditation body, ANMAC, but at the time of developing the reg
istration standard it was not possible to make that an immediate requirement.
However, it was necessary to have the registration standard for EMs accessible and
established because of the PII requirements for privately practising midwives, as is
discussed below.
Registration Standard for Endorsement for Scheduled Medicines for

Midwives under section 94
The registration standard for endorsement for scheduled medicines for midwives
under section 94 of the National Law is the means by which EMs are able to
275
prescribe selected medications. The wording to appear on the register is ‘Endorsed

as qualified to prescribe schedule 2, 3, 4 and 8 medicines required for midwifery
practice across pregnancy, labour, birth and postnatal care, in accordance with rel
evant State and Territory legislation’.65 The endorsement applies to a class of mid
wives and not to all midwives and the scope of the endorsement is that the midwife
is ‘qualified to prescribe schedule 2, 3, 4 or 8 medicines appropriate for midwifery
practice across pregnancy, labour, birth and postnatal care within the meaning of
the current poisons standard under section 52D of the Therapeutic Goods Act 1989
(Cth), and in compliance with relevant State and Territory legislation’.66 The quali
fications for endorsement are set out in Box 8.8.
In comparing the two standards, there is only one difference between the
requirements for notation as an EM and the qualifications for endorsement —
whereas the requirements for notation as an EM offer the option of undertaking
formal study with a view to completing it within 18 months of recognition as an
EM, under (f ) in the endorsement standard, the requirement is for the successful
completion of that study. Thus, an EM cannot prescribe until they have had extra
education to prepare them to do so. What medicines the EM will be able to pre
scribe depends on the relevant jurisdictional poisons legislation but there is a
formulary for midwifery prescribing that the NMBA has endorsed and that is on
the NMBA website.
BOX 8.8
QUALIFICATIONS FOR ENDORSEMENT FOR SCHEDULED
MEDICINES FOR MIDWIVES67
To be entitled to be endorsed for scheduled medicines, a midwife must be able to
demonstrate, at a minimum, all of the following:
a) current general registration as a midwife in Australia with no restrictions on
practice;
b) midwifery experience that constitutes the equivalent of three (3) years’ full-time
post-initial registration as a midwife;
c) current competence to provide pregnancy, labour, birth and postnatal care to
women and their infants;
d) successful completion of an approved professional practice review program for
midwives working across the continuum of midwifery care;
e) 20 additional hours per year of continuing professional development relating to
the continuum of midwifery care;
f) successful completion of:
i) an accredited and approved program of study determined by the Board to
develop midwives’ knowledge and skills in prescribing; or
ii) a program that is substantially equivalent to such an approved program of
study, as determined by the Board.
276
Professional indemnity insurance requirements for privately

practising midwives
The National Law requires a registered healthcare practitioner not to practise the
healthcare profession in which the practitioner is registered unless appropriate pro
fessional indemnity insurance arrangements are in force.68 This is not usually a
problem for midwives who are employees of large organisations due to the doctrine
of vicarious liability. However, it had the potential to create a problem for midwives
in private practice, as from 2001 to 2008 privately practising midwives (PPMs)
were unable to obtain professional indemnity insurance in Australia and, if they
wished to continue providing private homebirth services, were fundamentally forced
to practise midwifery uninsured.69
Since 2008, government-subsidised and other insurance products have been
available to midwives working in private practice. However, none of the insurance
products offered covers the actual intrapartum aspects of homebirth and it did not
appear to be possible to obtain such cover. This lacuna had the potential to remove
the option of a homebirth for women unless some alternative arrangements could
be made. For this reason, from 1 July 2010, under section 284 of the National Law,
there is a 2-year exemption from the requirement for PPMs to hold PII for home
births. However, PPMs who are granted this exemption are required to meet a set
of specified requirements under section 284(1)(b) and (c). Notwithstanding this
exemption, PPMs must have insurance for providing antenatal and postnatal
services, regardless of the birth setting. PII arrangements that midwives are advised
to consider include civil liability cover, unlimited retroactive cover and run-off
cover.70
The Department of Health and Ageing explains that the Australian Government
has contracted an insurer to provide professional indemnity insurance to eligible
midwives. The term ‘eligible midwife’ here has the same meaning and implications
as the NMBA’s definition — namely that these midwives will need to meet the
registration standard for EMs to qualify for government-subsidised PII (see Box
8.7).71
PPMs who are granted this exemption are also required to meet a set of specified
requirements under section 284(1)(b) and (c). Section 284(1)(b) states that
‘informed consent has been given by the woman in relation to whom the midwife
is practising private midwifery’. The NMBA explains that ‘informed consent must
be given by the woman who is the client of the midwife who is in private practice’
and defines informed consent as ‘written consent given by a woman after she has
been given a written statement by a midwife that includes a statement that appro
priate PII arrangements will not be in force in relation to the midwife’s practice of
private midwifery in attending a homebirth and any other information required by
the Board’.72
Section 284(c) and (c)(i) require the midwife to comply ‘with any requirements
set out in a code or guideline approved by the National Board under section 39
about the practise of private midwifery, including any requirement in a code or
guideline about reports to be provided by midwives practising private midwifery’.
The NMBA has a number of codes and guidelines specifically for midwives, some
of which were discussed earlier, such as the Code of Professional Conduct for Midwives
277
in Australia, the Code of Ethics for Midwives in Australia and the National Competency
Standards for the Midwife. Other advisory documents and guidelines, such as the
Professional Boundaries documents and decision-making frameworks are discussed
briefly later in this chapter.
Section 284(c)(ii) requires midwives in private practice to meet the requirements
detailed in these guidelines with regard to safety and quality for the PII exemption.
The original Safety and Quality Framework (SQF) that was developed for the
purpose of enabling PPMs to meet this criterion was adopted by the NMBA and
is currently due for review. Notwithstanding this review, the need for a SQF is
written into the legislation and therefore NMBA will be required to publish a
revised SQF. The NMBA initially used the SQF developed by the Victoria Govern
ment at the request of the Australian Health Ministerial Advisory Council (AHMAC)
and incorporated the principles of the SQF into all new documents relating to
midwifery practice. These include the Guidelines and Assessment Framework for
the Eligible Midwives and Endorsement for Scheduled Medicines Registration
Standard. The principles underpinning the SQF will continue to be used in all
future policy documents relating to midwifery.73 The SQF is not to be considered
in isolation either. The document cites a number of other publications relating to
midwifery practice.
The framework is written to ensure safe, high-quality care of the baby and the
woman choosing to birth at home with a privately practising midwife. It is not a
mechanism for determining the eligibility of midwives to gain access to the Medi
care or Pharmaceutical Benefits Schemes. The Australian Council of Midwives
Consultation and Referral Guidelines and the principles and practices outlined in
the draft NHMRC National Guidance on Collaborative Maternity Care form a
major element of the Safety and Quality Framework. The principles articulated in
‘Primary Maternity Services in Australia’ (AHMAC, 2008) underpin the provision
of primary maternity care in Australia and inform the main principles of the Safety
and Quality Framework.74
The SQF makes a number of statements relating to a woman’s right to choose
her place of birth and later sets out a table by which evidence of compliance with
the SQF can be ascertained for the purposes of granting an exemption. These are
organised under the principles of consumer value, clinical performance and evalu
ation, clinical risk and professional evaluation.75 In addition, the SQF sets out a
number of considerations and criteria related to homebirth that the PPM is expected
to address.
Distance and time to travel to an appropriately staffed maternity service should
be considered when assessing suitability for this option of care. These factors are in
addition to undertaking an assessment of risk for this birthing option. Women with
a singleton pregnancy, cephalic presentation, at term and free from any significant
pre-existing medical or pregnancy complications are those identified in the ACM
guidelines as clearly meeting criteria for midwifery-led care. When PPMs are the
primary carers for women who fall outside of these criteria, the consultation and
referral pathways must be documented and followed. Clearly articulated and docu
mented plans of escalation and collaboration are integral to the provision of safe
high-quality care leading to positive outcomes for mothers and babies. PPMs are
278
required to document advice provided to women in their care about the midwifery
scope of practice, risks and escalation processes. In addition, they will enlist the
services of another registered maternity care professional to provide a second opinion
in situations where the woman chooses not to follow clinical advice about the need
for interventions or transfer. A written record of these processes is essential to verify
adherence to the framework in the event of any adverse outcome and/or subsequent
legal action or professional investigation.76
There have been significant developments in the regulation of midwifery since
the previous edition of this textbook. These are clearly quite complex, but it is
exciting that Australian midwives are now able to be recognised as professionals in
their own right and that women are having increased choice in maternity services.
Despite these specific differences, there are also many similarities in the law regulat
ing nurses and midwives, and indeed other healthcare professionals. The NMBA
has adopted and/or developed a number of other guidelines for nurses and mid
wives, some of which make separate reference to the two professions and others
which are generic.
Other NMBA guidelines for nurses and midwives

The NMBA has also endorsed a number of evidence-based guidelines and advisory
documents that were commissioned by the Australian Nursing and Midwifery
Council, the former peak regulatory body for nursing and midwifery in Australia.
These are now badged as NMBA documents and included on the NMBA website
under Codes, Guidelines and Statements.77 Under Codes and Guidelines, in addition
to the Competency Standards discussed previously, the following documents are
available:
• Decision-making frameworks for nurses and midwives (discipline-specific);
• Guidelines for advertising of registered health professionals (generic);
• Guidelines for mandatory notifications (generic);
• Principles for the assessment of national competency standards (generic);
• Professional boundaries advisory documents (discipline-specific).78
Under Position Statements, some of which have already been discussed in this
chapter, the NMBA has issued statements on the scope of practice of NPs; midwives
in private practice; midwife practitioners; and concurrent registration as a registered
and enrolled nurse; and has endorsed the June 2011 Australian College of Midwives
Position Statement on Homebirth.79 Also, under FAQ and Fact Sheets, NMBA has
issued advice on English Language Skills (x2); recency of practice; registration as a
nurse or midwife; CPD; enrolled nurse medication administration; NP notation;
visa requirements for international nursing students; title protection; and social
media information.80 All of these documents together form the professional practice
framework for nurses and midwives, who should be familiar with those pertaining
to their scope of practice. In particular, the decision-making framework and profes
sional boundaries documents are equally as important as the codes of conduct and
ethics and competency standards in terms of helping beginning practitioners under
stand their responsibilities to the public and their respective professions.
279
Notifications and complaints about nurses and midwives

Protecting the public means that the public in general (including other healthcare
professionals) have a right (and in some instances a duty) to notify the relevant
registration authority if they have concerns about a healthcare practitioner’s conduct.
Perhaps his or her conduct appears in some way to be putting the public at risk, or
their health could be affecting his or her ability to practise safely, or there may be
concerns about his or her clinical competence or performance. AHPRA provides
advice on the types of conduct, health or performance matters that may prompt a
member of the public to make a notification. These are set out in Box 8.9.
BOX 8.9
DEFINITIONS FOR THE PUBLIC REGARDING NOTIFICATIONS IN
RELATION TO HEALTHCARE PRACTITIONERS’ CONDUCT,
HEALTH AND PERFORMANCE81
Conduct
Activities considered as breaches of professional conduct are categorised as unprofes-
sional conduct, professional misconduct and notifiable conduct.
Unprofessional conduct
Unprofessional conduct includes:
• breach of the National Law
• breach of a registration condition or undertaking
• conviction for an offence that may affect suitability to continue practice
• providing health services that are excessive, unnecessary or not reasonably
required
• influencing, or attempting to influence, the conduct of another registered health
practitioner that may compromise patient care
• accepting a benefit as inducement, consideration or reward, for referrals or
recommendations to use a health service provider
• offering or giving a person a benefit, consideration or reward, in return for
providing referrals or recommendations to use a health service provider
• referring a person to, or recommending another health service provider, health
service or health product, if there is a financial interest, unless the interest is
disclosed.
Professional misconduct
Professional misconduct includes:
• conduct that is substantially below the standard reasonably expected of a
registered healthcare practitioner of an equivalent level of training or experience
• more than one instance of unprofessional conduct
• conduct that is not consistent with being a fit and proper person to hold
registration in the profession.
280
Notifiable conduct
(discussed separately)
Health
Practitioners are health impaired if they have a physical or mental impairment, dis-
ability, condition or disorder that detrimentally affects, or is likely to detrimentally
affect their capacity to practise their profession.
If health practitioners or students have a health impairment, conditions may be
imposed upon their registration to ensure that they are able to practise safely.
Impairment is defined as a physical or mental impairment, disability, condition or
disorder (including substance abuse or dependence), that detrimentally affects or is
likely to detrimentally affect a:
• registered health practitioner’s capacity to safely practise the profession
• student’s capacity to undertake clinical training.
Performance
The professional performance of a registered practitioner is defined to be unsatisfac-
tory if it is below the standard reasonably expected of a practitioner of an equivalent
level of training or experience.
Health practitioners and students must be able to maintain satisfactory standards
of performance that are appropriate to their profession.
The professional performance of a registered practitioner is defined to be unsatis-
factory if the knowledge, skill or judgment possessed, or care exercised, is below the
standard reasonably expected of a practitioner of an equivalent level of training or
experience.
A notification can be made electronically, by mail, by telephone or in person.

There are forms that need to be completed but AHPRA staff can assist the public
to complete these where necessary. When a notification is received, AHPRA will
assess it to determine whether a board must consider taking immediate action to
protect public health or safety. This may result in suspending or imposing condi
tions on the registration status of a student or practitioner. If immediate action is
not required, AHPRA will assess the notification thoroughly to enable the relevant
board to make an informed decision about it. Each investigation is tailored to the
notification received, and complex matters take more time. AHPRA aims to com
plete most investigations within 6 months.82
There are a number of stages to the notification process, and it is useful to repro
duce the AHPRA advice on these so that the reader can have a clear idea of the
complexity of the process. The advice is set out in full in Box 8.10.
There is also a requirement under the National Law for mandatory notifications
in some situations. Practitioners and employers must report a registrant who they
believe has engaged in notifiable conduct. This is a new requirement for nurses and
midwives although other healthcare professionals have been subject to this require
ment previously. The belief must be formed through the practice of the profession.
281
BOX 8.10
STAGES OF THE NOTIFICATION/COMPLAINT PROCESS83
All notifications/complaints pass through stages 1 and 2, and depending on the
outcome of the preliminary assessment may pass through any of the following stages,
3 to 5.
Stage 1: Receipt of notification/complaint

AHPRA receives the notification/complaint either by online form, hardcopy form letter
or telephone.
Stage 2: Preliminary assessment

A preliminary assessment determines if the matter will be handled by AHPRA or
referred to another health complaints entity. If the location of the incident was in New
South Wales, the matter is referred to a New South Wales Authority (NSW Health Care
Complaints Commission and Medical Council of New South Wales) for action.
Preliminary assessment outcome

The outcome of the preliminary assessment may be for the board to:
• take immediate action on the practitioner’s or student’s registration
• investigate the notification
• request a health assessment of the practitioner or student or a performance
assessment of the practitioner
• refer the matter to a health or performance panel hearing
• refer the matter to a tribunal hearing
• issue a caution
• accept undertakings
• impose conditions
• take no further action.
Stage 3: Investigation
An investigation may need to be conducted to determine the appropriate course of
action, which may be to:
• take immediate action
• request a health or performance assessment
• refer the matter to a health or performance panel hearing
• refer the matter to a tribunal.
A decision may be made to:
• issue a caution
• accept undertakings
• refer all or part of the notification to another body
Where an undertaking or condition applies, the registrant will be subject to monitor-
ing to ensure compliance.
282
Stage 4: Panel hearing

A panel hearing will be conducted to determine the appropriate course of action,
which may be to refer the matter to a tribunal.
A decision may be made to:
• issue a caution or reprimand (performance and professional standards panel only)
• refer to another body
• suspend (only by a Health Panel)
ing to ensure compliance.
Stage 5: Tribunal hearing

A tribunal hearing will be conducted to determine the appropriate course of action,
which may be to:
• issue a caution or reprimand
• fine the registrant
• suspend registration
• cancel registration
ing to ensure compliance. Tribunal hearing outcomes are made available to the public.
Under section 140, notifiable conduct, in relation to a registered healthcare

practitioner means that the practitioner has:
a) practised the practitioner’s profession while intoxicated by alcohol or drugs;
or
b) engaged in sexual misconduct in connection with the practice of the
practitioner’s profession; or
c) placed the public at risk of substantial harm in the practitioner’s practice of
the profession because the practitioner has an impairment; or
d) placed the public at risk of harm because the practitioner has practised the
profession in a way that constitutes a significant departure from accepted
professional standards.
The AHPRA website provides useful information in relation to notifications, but

it is important to remember that the advice on the NMBA website in relation to
professional standards is there specifically to protect the public. Practitioners who
practise within their professional practice framework, whilst not being immune
from public dissatisfaction or concern, would be less likely to attract
disapprobation.
283
The New South Wales complaints system

In New South Wales, although registration and accreditation functions for nursing
and midwifery are managed centrally by the NMBA and ANMAC respectively, the
Government opted to retain its pre-existing complaints handling, investigating and
prosecuting mechanisms. To do this, it established, from 1 July 2010, a complaints
handling authority — the Health Professionals Council Authority (HPCA) — to
provide administrative and secretarial support to the 10 healthcare professionals
councils in the performance of their regulatory and legislative functions under the
National Registration and Accreditation Scheme, and in their primary role to
protect the public.
The 10 councils are the: Chiropractic Council of New South Wales; Dental
Council of New South Wales; Medical Council of New South Wales; Nursing and
Midwifery Council of New South Wales; Optometry Council of New South Wales;
Osteopathy Council of New South Wales; Pharmacy Council of New South
Wales; Physiotherapy Council of New South Wales; Podiatry Council of New
South Wales; and Psychology Council of New South Wales.
The HPCA is an administrative body of the Health Administration Corporation.
It is self-funded from the regulatory proportion of the annual registration fees paid
by healthcare practitioners practising in New South Wales. HPCA staff are employed
by the Director-General of NSW Health, to whom the Director of the HPCA
reports. Whilst the processes of who conducts the investigation and the prosecution
differ, many of the requirements are the same as for the national scheme, including
the requirement for mandatory notification. The HPCA website provides valuable
and comprehensive advice for nurses and midwives in New South Wales regarding
the processes in that state in the FAQ section.84
The accreditation of nursing and midwifery courses

Prior to the national scheme coming into operation, each jurisdiction would accredit
its own courses leading to registration or enrolment as a nurse or registration as a
midwife. Under the national scheme, a new independent accreditation authority
for nursing and midwifery has been established, the Australian Nursing and Mid
wifery Accreditation Council (ANMAC). Whilst it is beyond the scope of this
chapter to describe this work in detail, it is important for nurses and midwives to
understand that the approval of programs leading to qualifications that go onto the
registers is rigorous, systematic, and now nationally consistent. Information about
ANMAC is available on the Council’s website.85
CONCLUSION
It is evident that there have been substantial and exciting changes to the regulation
of nurses and midwives in Australia. The new national scheme is still in its early
days, so it is important that nurses and midwives check the relevant websites on a
regular basis to keep abreast of developments.
284
Endnotes
Note: All links given below were last accessed on 20) Australian College of Midwives Inc.,
16 February 2012. ACMI Position Statement: Midwifery and
1) Australian Health Practitioner Registration the Nurse Practitioner Project, ACMI,
Authority (AHPRA), Who we are, 2012, Canberra, 2005.
http://www.ahpra.gov.au/About-AHPRA/ 21) AHPRA, Glossary, 2012, http://
Who-We-Are.aspx. www.ahpra.gov.au/Support/Glossary.aspx#C.
2) Great Britan Department of Health, Trust, 22) AHPRA, Student Registrations, 2012, http://
Assurance and Safety: The Regulation of www.ahpra.gov.au/Registration/Student-
Health Professionals in the 21st Century, Registrations.aspx.
HMSO, Norwich, 2007, p 16. 23) Australian Nursing and Midwifery
3) Levi-Faur D, Handbook on the Politics of Accreditation Council, ANMAC Home,
Regulation, Edward Elgar Publishing, 2012, http://www.anmc.org.au/.
Cheltenham, 2012, p 459. 24) NMBA, Codes, Guidelines and Statements,
4) Health Practitioner Regulation National Law 2012, http://
Act 2009 (Qld), Schedule, Part 2, s 11. www.nursingmidwiferyboard.gov.au/
5) COAG Standing Council on Health, http:// Codes-Guidelines-Statements/Codes-
www.ahmac.gov.au/site/home.aspx. Guidelines.aspx.
6) Health Practitioner Regulation National 25) Health Practitioner Regulation National
Law Act 2009 (Qld), Schedule, Part 3, s 22. Law Act 2009 (Qld), Schedule, Part 7,
7) Health Practitioner Regulation National s 53.
Law Act 2009 (Qld), Schedule, Part 4, s 29. 26) Health Practitioner Regulation National
8) Health Practitioner Council Authority, Law Act 2009 (Qld), Schedule, Part 7,
http://www.hpca.nsw.gov.au/About-Us/ s 52.
default.aspx. 27) NMBA, Registration Standards, 2012, http://
9) Health Practitioner Regulation National www.nursingmidwiferyboard.gov.au/
Law Act 2009 (Qld), Schedule, Part 4, s 25. Registration-Standards.aspx.
10) However, it is the state board of the Nursing 28) Ibid. Also, see the English Language Skills
and Midwifery Board of Australia (NMBA) Registration Standard effective 19 September
that receives and processes requests for 2011, which will apply to all new applicants.
registration and/or endorsement. 29) NMBA, Continuing Professional Development
11) Health Practitioner Regulation National Registration Standard, 2010, p 1, http://
Law Act 2009 (Qld), Schedule, Part 5, s 35. www.nursingmidwiferyboard.gov.au/
Registration-Standards.aspx.
12) Health Practitioner Regulation National Law
Act 2009 (Qld), Schedule, Part 1, s 3(a). 30) Ibid.
13) Health Practitioner Regulation National Law 31) NMBA, Continuing Professional Development
Act 2009 (Qld), Schedule, Part 1, s 3(b). FAQ for Nurses and Midwives, 2010, http://
www.nursingmidwiferyboard.gov.au/
14) Health Practitioner Regulation National Law Codes-Guidelines-Statements/FAQ.aspx.
Act 2009 (Qld), Schedule, Part 5, s 36.
32) NMBA, Professional Indemnity Insurance
15) Health Practitioner Regulation National Law Arrangements Registration Standard, 2012,
Act 2009 (Qld), Schedule, Part 1, s 3(c). p 1, http://www.nursingmidwiferyboard.
16) Except in Western Australia, where there are gov.au/Registration-Standards.aspx.
slightly different requirements for mandatory 33) Ibid.
notifications.
34) Ibid.
17) AHPRA, Registers of Practitioners, 2012,
http://www.ahpra.gov.au/Registration/ 35) NMBA, Guidelines for Professional Indemnity
Registers-of-Practitioners.aspx?m=Search. Insurance Arrangements for Midwives, 2012,
p 3, http://www.nursingmidwiferyboard.
18) Health Practitioner Regulation National gov.au/Codes-Guidelines-Statements/
Law Act 2009 (Qld), Schedule, Part 7, s 73. Codes-Guidelines.aspx.
19) NMBA, Recency of Practice FAQ, 2010, 36) Anon, ‘Punished for looking after the
http://www.nursingmidwiferyboard. family’, Union News, 2012, http://
gov.au/Codes-Guidelines-Statements/ www.nswnurses.asn.au/news/37984.html.
FAQ.aspx.
285
37) NMBA, Recency of Practice Registration 54) World Health Organisation Europe,
Standard, 2012, p 1, http:// European Union Standards for Nursing and
www.nursingmidwiferyboard.gov.au/ Midwifery: Information for Accession
Registration-Standards.aspx. Countries, 2nd ed, 2009,
38) Ibid. www.euro.who.int/__data/assets/pdf_
39) Ibid. file/0005/.../E92852.pdf.
40) NMBA, Recency of Practice FAQ, 2010, 55) Rosskam E, Pariyo G, Hounton S and Aiga
http://www.nursingmidwiferyboard.gov.au/ H, The State of the World’s Midwifery 2011:
Codes-Guidelines-Statements/FAQ.aspx. Midwifery Workforce Management and
41) NMBA, Draft Policy on Re-entry to Practice Innovation, 2011, p 8, http://www.who.int/
for Nurses and Midwives, 2011, http:// entity/workforcealliance/media/Alliance_
www.nursingmidwiferyboard.gov.au/News/ backgrd_SWMR.pdf.
Past-Consultations.aspx. 56) NMBA, Recency of Practice FAQ, 2010, p 1,
42) NMBA, Endorsement for Scheduled Medicines http://www.nursingmidwiferyboard.gov.au/
for Registered Nurses Registration Standard, Codes-Guidelines-Statements/FAQ.aspx.
2010, http:// 57) NMBA, Registration Standard for Eligible
www.nursingmidwiferyboard.gov.au/ Midwives, 2010, http://
Registration-Standards.aspx. www.nursingmidwiferyboard.gov.au/
43) NMBA, Registration Standard for Registration-Standards.aspx.
Endorsement for Scheduled Medicines for 58) NMBA, Registration Standard for
Midwives, 2011, http:// Endorsement for Scheduled Medicines for
44) There is also provision for endorsement as a Registration-Standards.aspx.
midwife practitioner under section 96 of the 59) Australian College of Midwives Inc., ACMI
National Law. However, as explained in this Position Statement: Midwifery and the Nurse
chapter, this provision has not been used, as Practitioner Project, ACMI, Canberra, 2005.
there is only one midwife practitioner 60) Commonwealth Department of Health and
currently endorsed in Australia and this Ageing, Maternity Services Review: Overview,
person transitioned across from a 2008, http://www.health.gov.au/internet/
jurisdictional registration. main/publishing.nsf/Content/
45) NMBA, Endorsement as a Nurse Practitioner maternityservicesreview.
Registration Standard, 2011, http:// 61) NMBA, Registration Standard for Eligible
46) Ibid, p 1. Registration-Standards.aspx.
47) NMBA, Guidelines on Endorsement as a 62) Ibid, p 1.
Nurse Practitioner, 2011, p 4, http:// 63) NMBA, Guidelines and Assessment
www.nursingmidwiferyboard.gov.au/ Framework for Registration Standard for
Codes-Guidelines-Statements/Codes- Eligible Midwives and Endorsement for
Guidelines.aspx. Scheduled Medicines, 2010, p 11, http://
48) Ibid. www.nursingmidwiferyboard.gov.au/
49) Ibid, p 3. Codes-Guidelines-Statements/Codes-
50) NMBA, Position Statement 27/10/2011 Scope Guidelines.aspx.
of Practice of Nurse Practitioners, 2011, 64) NMBA, Registration Standard for Eligible
http://www.nursingmidwiferyboard.gov.au/ Midwives, 2010, p 1, http://
Codes-Guidelines-Statements/Position- www.nursingmidwiferyboard.gov.au/
Statements.aspx. Registration-Standards.aspx.
51) Ibid, p 1. 65) Ibid.
52) NMBA, Guidelines on Endorsement as a 66) Ibid.
Nurse Practitioner, 2011, p 4, http:// 67) Ibid.
www.nursingmidwiferyboard.gov.au/ 68) Health Practitioner Regulation National Law
Codes-Guidelines-Statements/Codes- Act 2009 (Qld), Schedule, Part 7, s 129.
Guidelines.aspx. 69) NMBA, Guidelines for Professional Indemnity
53) Ibid, p 5. Insurance Arrangements for Midwives, 2012,
286
p 3, http://www.nursingmidwiferyboard. 78) Ibid.

gov.au/Codes-Guidelines-Statements/ 79) NMBA, Codes, Guidelines and Statements:
Codes-Guidelines.aspx. Position Statements, http://
70) Ibid, p 6. www.nursingmidwiferyboard.gov.au/
71) Commonwealth Department of Health and Codes-Guidelines-Statements/Position-
Ageing, Maternity Services Review, Questions Statements.aspx.
and Answers: Midwife Professional Indemnity, 80) NMBA, Codes, Guidelines and Statements:
2010, http://www.health.gov.au/internet/ FAQ and Fact Sheets, http://
main/publishing.nsf/Content/ www.nursingmidwiferyboard.gov.au/
Maternity+Services+Review-Q&A-PIMI. Codes-Guidelines-Statements/FAQ.aspx.
72) NMBA, Guidelines for Professional Indemnity 81) AHPRA, Notifications and Outcomes:
Insurance Arrangements for Midwives, 2012, Conduct, Health and Performance, 2012,
p 6, http://www.nursingmidwiferyboard. http://www.ahpra.gov.au/Notifications-and-
gov.au/Codes-Guidelines-Statements/ Outcomes/Conduct-Health-and-
Codes-Guidelines.aspx. Performance/Performance.aspx.
73) NMBA, Safety and Quality Framework, 82) AHPRA, Notifications and Outcomes:
undated, http:// Notification Process, 2012, http://
www.nursingmidwiferyboard.gov.au/ www.ahpra.gov.au/Notifications-and-
Codes-Guidelines-Statements/Codes- Outcomes/Notification-Process.aspx.
Guidelines.aspx. 83) Ibid.
74) Ibid, p 1. 84) Health Professionals Council Authority,
75) Ibid, pp 3–4. Frequently Asked Questions, 2012, http://
76) Ibid, p 2. www.hpca.nsw.gov.au/Frequently-Asked-
77) NMBA, Codes, Guidelines and Statements: Questions/default.aspx.
Codes and Guidelines, http:// 85) Australian Nursing and Midwifery
www.nursingmidwiferyboard.gov.au/ Accreditation Council, About ANMAC,
Codes-Guidelines-Statements/Codes- 2012, http://www.anmc.org.au/
Guidelines.aspx. accreditation.
287
Chapter 9
Coronial jurisdiction
If a nurse or midwife is to become caught up in any aspect of the legal system, the
Coroner’s Court is the most likely place for that to occur. In turn, the outcome of
a coronial inquest may have significant professional implications for the nurse or
midwife — the findings of a coronial inquest may be the springboard for a person
or party to commence civil or criminal proceedings involving the nurse or midwife.
For those reasons, a knowledge and understanding of the coronial jurisdiction is
important to all practising nurses and midwives.
The position of coroner in our legal system

Coroners have been in existence for many hundreds of years and their presence in
our legal system is part of the legacy we inherited from the English common-law
system.
All of the states and territories have legislation dealing with the role and function
of coroners and for once the title of the Act is the same in each state and territory
— that is, the Coroners Act.1
The primary role of a coroner is to detect unlawful homicide; that is, when a
person dies in unusual, unexpected, violent or unnatural circumstances, it is neces-
sary to inquire into the manner and cause of death to ensure that no ‘foul play’ goes
undetected.
The coronial court structure varies a little from state to state and territory to
territory, generally depending on the size and coronial workload of the jurisdiction.
All states appoint a person to the position of State Coroner, and territories appoint
a Territory Coroner. In all jurisdictions, except Victoria, the person appointed as
State or Territory Coroner is a magistrate. In Victoria, the person appointed is a
County Court Judge. The State or Territory Coroner is responsible for overseeing
and coordinating the coronial services of the state or territory. In carrying out their
coronial functions and as the workload demands it, the State or Territory Coroner
is assisted by additional magistrates appointed as coroners, either on a full-time or
an as-required basis.
289
In the capital cities in the larger states, Coroners’ Courts are usually separate
courts because of the volume of work they are required to perform. Where that is
not the case, particularly in regional cities and country towns, the local court house
is used as the venue for coroners’ inquests.
In an inquest the coroner is assisted by a lawyer generally referred to as ‘counsel
assisting the coroner’. The task of that person, with the assistance of the police
officers who have investigated the death of the person concerned, is to produce
evidence, including calling witnesses considered relevant, to enable the coroner to
determine those matters that he or she is required to establish.
The role of the coroner

The primary task of the coroner is to establish the following facts:
• that death occurred;
• the identity of the deceased;
• the date, place, manner and cause of death;
and, where relevant,

• the cause of fires or explosions.
Reportable deaths leading to an inquest

Obviously, a coronial inquest is not required into the death of every person. For
the coroner to have the power to investigate a person’s death, the death must be a
‘reportable death’ as defined by the Coroners Act of the state or territory. The police
usually notify the coroner of such a death, once the death is reported to them.
What constitutes a ‘reportable death’ varies from state to state and territory to
territory. Although the following is not exhaustive, in general terms, a death must
be reported to a coroner in the following circumstances:
• where the person died unexpectedly and the cause of death is unknown;
• where the person died in a violent or unnatural manner;
• where the person died during the process or as a result of being administered
an anaesthetic;
• where the person was ‘held in care’ or in custody immediately before they
died;
• where a doctor has been unable to sign a death certificate giving the cause of
death; or
• where the identity of the person who has died is not known.
In relation to the death of a person in a hospital or healthcare setting, the obliga-

tion to report such a death to a coroner will depend on the circumstances of the
death. Each state and territory provides for such circumstances but in slightly dif-
ferent wording.
In New South Wales, section 6, amongst other provisions, says that a person’s
death is reportable ‘where the person’s death was not the reasonably expected
290
9 • Coronial jurisdiction
outcome of a health-related procedure carried out in relation to the person’.

A ‘health-related procedure’ is defined as ‘a medical, surgical, dental or other health-
related procedure (including the administration of an anaesthetic, sedative or other
drug)’.
In Victoria, section 4 refers to a death that occurs ‘during a medical procedure’
and where ‘a registered medical practitioner would not, immediately before the
procedure was undertaken, have reasonably expected the death’. A similar provision
is to be found in section 10AA of the Queensland Act, although expressed in more
detail and wider terms.
The Northern Territory (s 12), Tasmania (s 3) and Western Australia (s 3) all refer
to a death that occurs ‘during an anaesthetic’ or ‘occurs as a result of an anesthetic
and is not due to natural causes’.
The Australian Capital Territory Act does not define ‘reportable death’ but section
13 requires that a coroner ‘must’ hold an inquest into the manner and cause of a
person’s death where (amongst other provisions) the person ‘dies during or within
72 hours after, or as a result of an operation of a medical, surgical, dental or like
nature or an invasive medical or diagnostic procedure’.
All states and territories require a death to be reported where the person dies
while in police custody or control, or while in gaol, where the person is being cared
for within the relevant mental health provisions of the state or territory, or where
the person is a child or young person in care.
Who notifies a ‘reportable death’

In a hospital or healthcare-related environment where a person’s death is ‘report-
able’, the relevant hospital or healthcare authority notifies the local police station
who, in turn, submits the notification of that death to the Coroner’s Office. If a
person died in a hospital or nursing home in circumstances that would render that
death ‘reportable’ and the authorities failed to notify the police, a member of staff
or a relative of the deceased could report that death to the police. The police would
then investigate that report and notify the coroner if satisifed it was a ‘reportable
death’. All states and territories make provision that ‘any person who has reasonable
grounds to believe that a reportable death has not been reported’ must report it to
a police officer or coroner as soon as possible. A failure to do so is considered an
offence subject to financial penalty and, in the case of the Australian Capital Terri-
tory and South Australia, potential imprisonment.2
The procedure following notification of a ‘reportable death’

Once a death has been reported to police, the coroner will receive a report submit-
ted by the police detailing their investigation into the person’s death together with
any accompanying statements. As well, an autopsy may be undertaken. That mate-
rial together with additional scientific forensic tests such as toxicology results, will
be considered by the coroner to determine whether a coronial inquest need be held
or whether the coroner is able to make the formal findings as to the person’s death
without the need to call witnesses and receive further evidence. The latter course of
action, that is, to dispense with an inquest, is open to a coroner who will formally
291
certify the death of the person and the findings made in chambers. However, in a
hospital, nursing home or healthcare setting, such an approach is unlikely and the
coroner will proceed to a formal coronial inquest.
A coroner is generally somewhat cautious in deciding to dispense with an inquest
arising out of a patient’s death in a hospital or healthcare-related environment, even
if there are no suspicious circumstances. The main reason for such caution is that,
on many occasions, the relatives of the deceased want to know what happened,
particularly if the person’s death was unexpected and not directly attributable to
whatever had necessitated the patient’s being in hospital. In such a situation it is
always desirable to have an inquest so that the relatives of the deceased have the
opportunity to discover the facts that led to the patient’s death and to reassure
themselves that all that could have been done was done.
It is important to bear in mind that the coroner may come to the view that the
person died as a result of a criminal act committed by a known or unknown person.
In such circumstances it is not the task of the coroner to formally charge a known
person with a criminal offence or determine a person’s guilt or innocence. A coroner
does not conduct criminal trials. Such proceedings must be undertaken in another
court. If a coroner concludes that a person met his or her death as a result of a
criminal act, the coroner refers that matter to the prosecuting authorities for their
consideration and action. It is possible for criminal charges to be laid against a nurse
or midwife following a coroner’s inquest. Admittedly it would be relatively rare for
such an outcome to occur — but it could happen, and has happened. For example,
in New South Wales, in two separate inquiries in 1993 and 1994 respectively, the
coroner found that the evidence disclosed that the actions of the nurse concerned
were sufficient to warrant the circumstances of each matter being referred to the
prosecuting authorities to determine whether criminal charges should be laid. Both
cases involved serious medication errors resulting in the death of the patient
concerned.
In the first case, a newly graduated registered nurse employed to work in the
intensive care unit of a major public teaching hospital in Sydney injected Dylantin
oral suspension into the central venous line instead of down the nasogastric
tube of a patient in his care.3 As a result the patient had a cardiac arrest and died.
The coroner’s inquest that followed determined the circumstances giving rise to
the patient’s death were such as to amount to criminal negligence and referred the
matter to the Director of Public Prosecutions. The nurse was subsequently charged
with manslaughter. A jury acquitted the nurse of that charge.
In another incident a registered nurse significantly overdosed a patient with
Methotrexate, causing death.4 This was despite the clearly written instructions in
the patient notes as well as evidence given which acknowledged that the dose
administered was far in excess of what would reasonably be expected to be given.
In this inquiry into the patient’s death the coroner found that:
The breach of the duty of care by certain persons was not merely
a breach which called for compensation, but the evidence clearly establishes
there has been evidence which amounts to recklessness and gross
negligence.5
292
In considering all of the evidence in the matter, as well as the coroner’s findings,
the prosecuting authorities ultimately decided not to lay any criminal charges
against the nurse concerned.
While the coroner may not make any finding that a criminal offence has been
committed by a person or persons, he or she may conclude that the care given by
hospital or healthcare staff was significantly deficient in a number of areas. Although
such a view may emerge from the evidence, the coroner has no power to determine
the outcome of potential litigation on behalf of the relatives of the deceased. If the
relatives believe that hospital or healthcare staff have been professionally negligent
as a result of what was disclosed at the inquest, they must pursue their action in
the appropriate civil court depending on the amount of monetary compensation
being sought.
If the relatives of the deceased suspect that hospital staff may have been negligent
in caring for the deceased leading up to his or her death, they will often use the
coroner’s inquest as a means of eliciting evidence to enable them to decide whether
or not it is worthwhile pursuing an action in negligence in another court.
Findings and recommendations that may arise from a coroner’s inquest

At the conclusion of an inquest, in addition to determining the manner and cause
of death as required, the coroner may, if he or she so wishes, comment critically
about the standard of care given to the deceased in a hospital, nursing home or
healthcare setting and make certain recommendations.
The recommendations made are usually directed to the government of the day
or the organisation responsible for overseeing the actions which led to the deceased’s
death. For example, a coroner’s inquest was held in Sydney into the death of an
elderly patient who had died as a result of burns received from suddenly turning
on the hot water tap while showering in hospital. The sudden rush of scalding
water so shocked the patient that she was unable to turn the tap off before help
arrived and she sustained severe burns from which she later died. In giving his
findings as to the manner and cause of death, which was as a result of severe burns
sustained while showering, the coroner also made certain recommendations con-
cerning the temperature of hot water in hospitals and nursing homes. He recom-
mended that, in hospitals and nursing homes, the temperature of the hot water
should be thermostatically controlled to prevent such occurrences. The coroner’s
recommendation was forwarded to the appropriate state government department
and, as a result, hospitals and nursing homes in New South Wales were directed
to ensure that the temperature of hot water provided for patient use was such that
sustained exposure would not cause severe burns.
All states and territories have provisions in their respective Coroners Acts for a
coroner to make recommendations arising from an inquest.6 New South Wales
provides for recommendations to be made concerning ‘matters relating to public
health or safety’; likewise, the Australian Capital Territory, the Northern Territory,
Queensland, Tasmania, Victoria and Western Australia. South Australia provides
for recommendations on matters that ‘might … prevent or reduce the likelihood
of recurrence of a similar event’ which would embrace public health or safety issues.
Queensland has a similar provision in addition to ‘public health or safety’. Both
293
Queensland and Western Australia provide for a coroner to refer a matter arising
from an inquest to a ‘disciplinary body of a trade or profession’. Such an express
provision clearly refers to the registration authority relating to nurses and midwives.
A reference received from a coroner to such an authority would clearly provide the
basis for an inquiry to be made pursuant to the disciplinary provisions of the nurse
or midwife’s registering authority which may lead to a charge of professional mis-
conduct. While the other states and territories do not have the express provision
for a coroner to make a reference to ‘a disciplinary body of a trade or profession’ as
do Queensland and Western Australia, it is clear in our view that such a reference
can and has been made by a coroner in the other states under the catch-all provision
of ‘public health or safety’.
The role and powers of nurse and midwife registration authorities in relation to
disciplinary proceedings is detailed in Chapter 8. Also highlighted in earlier chap-
ters, particularly relating to professional negligence and the standard of care expected
of nurses and midwives in certain clinical situations, are the outcomes of a number
of coronial inquests where the coroner has been critical of nursing staff. The facts
and circumstances of some of those examples have formed the basis for ongoing
civil litigation by the family of the deceased seeking compensation for negligence
by the staff concerned.7
State and territory health departments have a responsibility to act upon recom-
mendations made by a coroner that are relevant to the administration and delivery
of health services in the particular state or territory.
Where a coroner hands down a report identifying the manner and cause of a
person’s death that includes critical reference to aspects of care given in a hospital
or healthcare facility, as well as recommendations intended to be implemented to
address the deficiencies identified, that report will be sent to the Attorney-General
and/or Minister for Health. As a matter of procedure, upon receipt of a coroner’s
report and recommendations, the minister responsible is required to act upon the
report and recommendations, and advise the State Coroner accordingly within a
set time frame — usually between 3 and 6 months. The actions undertaken by the
minister may include:
• referring the whole or parts of the matter to others for investigation and report
back; for example, to the Chief Health Officer, the body for investigating
healthcare complaints, or relevant public health branches;
• upon receipt of the investigatory report, initiating one or more of the
following actions:
– the development of and promulgation of new policy;
– remedial action or a change of procedure within the healthcare system;
– professional disciplinary action against identified healthcare professionals.
The relevance of a coroner’s inquest for nursing staff

It is important to remember that in all states and territories, evidence given before
a coroner’s inquest may form the basis of disciplinary charges against a healthcare
professional brought by the relevant registration authority, or as a result of a com-
plaint lodged by a relative of the deceased following evidence disclosed at the
294
inquest. It is for this reason primarily that nurses and midwives should be particu-
larly aware of the power of coroners’ inquiries to impact on their professional
registration.
As stated earlier, the specific legislative provisions that apply to the holding of
inquests are accompanied, in some situations, by the power of the coroner to dis-
pense with an inquest if he or she is satisfied that there are no suspicious circum-
stances surrounding the death. In relation to hospitals and nursing homes or
healthcare-related environments, however, while the coroner may dispense with an
inquest, he or she is unlikely to do so because of the questions generally raised by
the relatives of the deceased as to the circumstances of the person’s death, particu-
larly if it was unexpected.
Legal representation at the inquest

In all states and territories, any person who is required to give evidence at a coroner’s
inquest is deemed to have ‘sufficient interest’ in the inquiry to permit them to have
legal representation. If staff of a hospital, nursing home or healthcare-related envi-
ronment are involved in an inquest, the employer will usually ensure that, if neces-
sary, staff involved are represented by their legal representative. If that is not done,
or if conflict arises, legal representation is generally provided for nurses or midwives
if they are a member of the relevant nursing organisation in each state and
territory.8
If such legal representation is not provided or available, it may be possible to
apply for state-funded legal aid if it is available, or the nurse or midwife may have
to obtain and pay for his or her own legal representation. Given the cost of legal
services it is to be hoped such a situation never arises.
For those nurses and midwives who are members of the relevant nursing organi-
sation in their state or territory, preliminary advice should be obtained to assist
them in the giving of statements for coroners’ inquiries and disciplinary inquiries
generally. As a preliminary guide, an extract from guidelines prepared by the New
South Wales Nurses’ Association is of sufficient general application to nurses and
midwives in all states and territories as to warrant setting it out at the end of this
chapter.9
Relevant advice and procedure for nurses and midwives in relation

to a coroner’s inquest
A coroner’s inquest can sometimes be a harrowing experience for healthcare profes-
sionals who are unaccustomed to court procedures and often feel they are being put
on trial.
Given the potential for civil liability or criminal charges to arise from a coroner’s
inquest, a nurse or midwife who is to be called to give evidence at an inquest should
be fully aware of their rights and obligations in relation to such hearings. In the
first instance, they should be aware of their right to refuse to answer any questions
from a police officer or others in authority which may tend to give rise to a criminal
charge against them; that is, incriminate them. All members of the community have
this right. While such an outcome to a coroner’s inquest for nursing staff is rare, it
is important to remember that right and, as a general rule, make no statement,
written or otherwise, until legal advice is obtained.
295
In some cases, the first inkling that a nurse or midwife will have that they are
required to give evidence at an inquest is when they are approached by a police
officer requesting a statement as to their recollection of events at the time of the
patient’s death — sometimes many months after the death occurred. The fact that
a police officer requests a statement in such a situation does not mean that a criminal
offence is suspected. It is just that one of the routine tasks of police officers is to
obtain the necessary statements for the coroner which they, in turn, refer to the
coroner for his or her consideration once their inquiries are completed.
When a request for a statement is made by a police officer, it is advisable to
indicate that you will agree to assist with whatever relevant information can be
clearly recalled that may assist the coroner in his or her inquiry as to the manner
and cause of death. A refusal to cooperate or appear at the inquest will normally
result in the issue of a subpoena compelling attendance. However, it is wise, even
as a precautionary measure, to seek legal advice concerning any statement to be
made or provided to the police if the events surrounding the patient’s death are
such as to give rise to any concern being expressed.
It is perfectly proper and legally permissible to decline to give any statement
immediately but to indicate a willingness to do so after legal advice has been
obtained. The guiding principle in this respect should always be that, if in any
doubt, seek advice. With hindsight, it may prove to have been unnecessary, but it
is better to err on the side of abundant caution in such situations.
PROCEDURE PRIOR TO AN INQUEST
As referred to earlier, when a reportable death occurs, it is necessary to notify the
police. That notification will usually be undertaken by management. However, there
may be occasions in small or isolated rural hospitals and healthcare services, or
nursing homes, where the registered nurse or midwife may have to notify the local
police. It is expected that a clear protocol would be in place as to who is responsible
for notifying, but in circumstances where this is unclear, inquiries should be made
of the hospital or healthcare service management in the first instance. However, if,
given the circumstances, that is not possible, the medical officer certifying the death
or otherwise, or the registered nurse or midwife present at the time, may have to
notify the local police.
While it is most unlikely to arise, a registered nurse or midwife, in circumstances
where he or she believes the person has died under suspicious or unusual circum-
stances and that the manner and cause of death has not been correctly recorded, is
under a legal obligation to report the death to the local police. Should such a situ-
ation arise, the nurse or midwife should, in the first instance, raise his or her con-
cerns with the medical officer involved in certifying the death.
If notification is made independently of the healthcare authority and/or medical
officer concerned, it is advisable that the nurse or midwife be able to objectively
detail the facts and circumstances relied upon to notify the police.
When an inquest is held or likely to be held

Nursing and midwifery staff should be generally mindful of situations where the
death of a patient may give rise to a coroner’s inquest. As a matter of policy, where
296
possible, staff should be informed by administration or the patient’s doctor if an

inquest is likely to arise following a patient’s death. If that is done it will allow the
nursing staff involved to obtain legal advice as necessary and prepare a draft state-
ment at the time of the patient’s death rather than relying on their memory many
months after the event. With some inquests, staff have been asked for statements
up to 4 years after the patient’s death when they generally, and not surprisingly,
have little or no recollection of the patient, let alone the events surrounding the
patient’s death.
At the time of notification the police will usually take the minor preliminary
details and return some time later for any statements that may be required. In some
situations the police prefer to make their inquiries immediately after they are noti-
fied and proceed to question staff on the spot. That situation often occurs in psy-
chiatric hospitals or institutions, where it is compulsory under the Coroners Act for
the coroner to be notified of the death of every patient. More often than not the
patients who die in psychiatric hospitals, particularly the elderly psychogeriatric
patients, die from old age and natural causes with no suggestion of suspicious cir-
cumstances or negligent treatment on the part of nursing staff. However, because
the police must take statements, they will normally do so at the time of death, in
order to have the matter dealt with as quickly as possible and without further
inconvenience to the nursing staff concerned. In this situation, it is sensible to give
the police whatever information is required at the time. However, if there are con-
cerns regarding the circumstances surrounding the patient’s death, arrangements
can be made to give a statement at a later time after legal advice has been obtained.
In the circumstances outlined, particularly concerning inquests into the death of
patients in psychiatric hospitals, the coroner may dispense with the need for a formal
inquest once the statements from the police have been received.
The body should be left as it is at the time of death. All drainage tubes, intrave-
nous lines, in-dwelling catheters, nasogastric tubes, cardiac monitoring pads, sutures,
dressings and so forth should remain in position. Obviously some of those lines
will have to be disconnected externally and capped or sealed. The body should then
be transported to the morgue in the normal manner and in due course arrangements
will be made for a post-mortem to be conducted.
If it appears that a patient or client’s death is reportable and that a statement will
be required, a draft statement or notes should be prepared by the nurse or midwife
setting out the relevant details as soon as possible, while the relevant events are fresh
in the memory. This nurse should retain such notes until a formal statement is called
for. A draft statement or notes should not be handed over to the police or relevant
authorities until any necessary legal advice is obtained and a formal statement pre-
pared. When a formal statement is requested by the police or hospital administra-
tion, the draft statement or notes made at the time of the patient’s death will assist
in writing such a statement. Once again, should any particular concern be felt or
expressed, it is advisable that legal advice be sought before submitting the formal
statement. When a statement is to be given to the police or healthcare service
administration, a copy should always be retained.
Occasionally, a statement is requested some considerable time after the event
when, in most cases, the particular patient has long been forgotten, and no draft
297
statement or notes were made at the time of death. In such a case, it may be neces-
sary to request to peruse the patient or client notes to refresh one’s memory. That
does not always help recall specific details, but it does allow identification of one’s
handwriting of any entries made at the time.
In an inquest into the death of a person who has been a patient or client of a
hospital or healthcare service and who has died in circumstances related to the
person’s care or treatment received, his or her medical and care records will be very
carefully scrutinised to ascertain if there is any information contained within them
that may assist the coroner to determine the manner and cause of death. If the
person’s relatives are legally represented at the inquest, they will also have access to
those records and may wish to cross-examine the medical and nursing staff about
entries made.
Accordingly, it is important for nurses and midwives to ensure entries made in
patient or client records are relevant, contemporaneous and objectively factual.
Refer to Chapter 7 on report writing for assistance in such matters.
Extract from the New South Wales Nurses’ Association guidelines for the
purposes of giving statements for coroners’ inquests and other
disciplinary matters
The Association has formulated a number of guidelines which it recommends to
members faced with the prospect of an interview in relation to any of the above
situations described as a ‘disciplinary/fact-finding interview’ by any investigating
body or officer. They are as follows:
1) Contact the Association for advice. To obtain the necessary advice you should
find out details of the matter in which you are involved, the name and
contact number of the investigator and the proposed date and time of the
interview or the date for submission of the statement.
2) The Association will contact the investigator on your behalf and seek full
particulars.
3) Following this, you should be given at least 24 hours’ notice of the time, date
and place of the proposed interview. You should not attend any interview
until advised by the Association.
4) You have a right to access a health record of a client relating to a request for
an interview or statement, before you provide a statement or attend an
interview, to refresh your memory.
5) Members attending interviews may be accompanied by an Association
representative who has knowledge of the issues and rights of the member.
6) Prior to attending any interview, you should be advised by the interviewer
that:
a) anything you may say and the transcript of the interview may be used in
evidence in any subsequent legal or disciplinary proceedings;
b) you have the right to either allow or refuse audio or video taping of the
interview; and
c) you may be asked to provide a written statement subsequent to the
interview. However, you cannot be made to provide this written statement.
298
7) If in the course of any interview, matters are raised which go beyond those
previously disclosed to you, the interview should be adjourned or concluded so
that you can obtain full particulars of the new issue(s) and gain further advice.
8) You should be aware that the interviewer is not permitted to use intimidatory
or accusatory terms. If this approach is adopted, the interview should be
terminated immediately.
9) Persons conducting the interview should be totally impartial.
10) You should be provided with a copy of the tape and transcript of the
interview as soon as practicable after its completion. You should not sign any
transcript or record of interview unless you have read it and are satisfied that
it is true and correct in every respect.
11) The Association maintains that its members are entitled to a fair, proper and
prompt outcome of such investigations and attempts to assist its members to
achieve this end.
QUICK QUIZ
Having studied the text in relation to coronial jurisdiction, students should be able to answer
the following questions:
1) What is the role and purpose of the Coroner’s Court?
2) Is it the same in all states and territories?
3) Under what circumstances is a death examinable by a coroner?
4) Does there always have to be an inquest or can it be dispensed with?
5) If the coroner makes a decision not to hold an inquest, what happens next?
6) How does a Coroner’s Court become relevant for nursing staff?
7) If a death has occurred at work that fits within the provisions of the relevant
Coroners Act what is required to be done? Can the nurse notify the police
independently if he or she believes the circumstances warrant it?
8) Who is responsible for notifying police in the event of a death involving the
Coroner’s Office?
9) If there is a police investigation, what happens?
10) If a nurse or midwife is asked to provide a statement to the police, should he or she
agree or may he or she refuse?
11) What do the police do once they collect statements?
12) Are relatives able to request an inquest if they are unhappy with the circumstances in
which their relative dies?
13) If an inquest is held, will the nursing staff who have made a statement be required to
attend and give evidence?
14) Would a nurse or midwife be entitled to legal representation at an inquest? Who else
is entitled to be represented?
15) How important are the patient’s records at an inquest? Will the entries made by
nursing staff be scrutinised?
16) Apart from determining the manner and cause of death, what else may be the
outcome of a coronial inquest?
299
Endnotes
1) Coroners Act 1997 (ACT); Coroners Act 2009 and 35; Coroners Act 2003 (Qld) ss 46 and
(NSW); Coroners Act (NT); Coroners Act 48; Coroners Act 2003 (SA) s 25; Coroners Act
2003 (Qld); Coroners Act 2003 (SA); Coroners 1995 (Tas) s 30; Coroners Act 2008 (Vic)
Act 1995 (Tas); Coroners Act 2008 (Vic); s 72; Coroners Act 1996 (WA) ss 25 and 50.
Coroners Act 1996 (WA). 7) See Chapter 3: Coroner’s Inquest into the
2) Coroners Act 1997 (ACT) s 77; Coroners Act death of Samara Lea Hoy, Southport
2009 (NSW) s 35; Coroners Act (NT) s 12; Coroner’s Court, Feb–Jun 2010; Coroner’s
Coroners Act 2003 (Qld) s 7; Coroners Act Inquest into the death of Tracey Baxter, NSW
2003 (SA) s 28; Coroners Act 1995 (Tas) s 19; Coroner’s Court, 1979; McCabe v Auburn
Coroners Act 2008 (Vic) ss 10 and 12; District Hospital (SC (NSW), Grove J, No.
Coroners Act 1996 (WA) s 17. 11551 of 1982, 12 May 1989, unreported).
3) Coroner’s Inquest into the death of Clinton 8) The New South Wales Nurses’ Association;
Norwood, Westmead Coroner’s Court, the Queensland Nurses’ Union; and in all
February 1994. other states and territories, the branch of the
4) Coroner’s Inquest into the death of Sara Australian Nursing Federation.
Slapp, Westmead Coroner’s Court, July 1993. 9) The full text of the guidelines can be found
5) Ibid. on the Nurses’ Association website in the
6) Coroners Act 1997 (ACT) s 57; Coroners Act members-only information section:
2009 (NSW) s 82; Coroners Act (NT) ss 27 www.nswnurses.asn.au.
300
Chapter 10
Human tissue transplantation
History and background of human tissue transplantation

and research
Human tissue transplantation has been a growing part of medical and scientific
development for many years. In his book The Body as Property, Russell Scott recounts
that more than 2000 years ago Indian surgeons were transplanting human skin in
the operation of rhinoplasty.1 Blood transfusions have long been commonplace and
the nineteenth century saw the first transplantation of certain body parts, such as
teeth and bone. The twentieth century and more particularly the last 30 to 40 years
have seen enormous developments in the field of human tissue transplantation. The
first successful kidney transplant was performed in 1954 and the first successful
transplant of a human heart took place in December 1967, in South Africa; but on
that first occasion the recipient died 18 days later. However, a heart transplant
performed in the United States only 10 months later kept the recipient alive for
over 8 years.2 Since that time the list of tissue, regenerative and non-regenerative,
and even human and non-human, that has been transplanted with varying degrees
of success has grown considerably. Herring has provided a useful list of the different
types of organ transplantation currently available or being explored, and this is set
out in Box 10.1.
At the time of writing, the use of human tissue for transplantation, research and
other purposes in Australia is the subject of considerable controversy, discussion and
debate. A total of 337 Australians who died in 2011 donated their organs, benefit-
ing 1001 people in need of a transplant, figures released in December 2011 show.
The number of donors was 28 more than for 2010, which translated into an addi-
tional 70 recipients, the highest annual total of deceased organ donors and trans-
plant recipients in Australia’s history. However, Australia’s per capita donor rate
remains one of the poorest among developed nations. Transplant advocacy group
ShareLife says Australians in need of an organ transplant will still wait longer than
patients in 23 other countries, including Argentina, Uruguay and Puerto Rico. The
Parliamentary Secretary for Health, Catherine King, said the 2011 figures were
encouraging but the international comparisons were sobering. ‘We’re continuing to
301
BOX 10.1
TYPES OF ORGANS POTENTIALLY AVAILABLE
FOR TRANSPLANTATION3
1) Live organ donation: an organ is taken from a living person and given to another.
Clearly, this kind of organ donation is limited; one that is possible is the kidney.
2) Cadaver organ donation: an organ is taken from a person shortly after death and
transplanted into another.
3) Xenotransplantation: an organ is taken from an animal and used in a human.
4) Genetically created organs: scientists are currently working on this technology.
The hope is that at some point an organ can be created in a laboratory from
human genetic material that can then be placed into a person.
5) Artificial organs: some work is being done to create robotic/mechanical organs
for transplant, with some success.
see the rate of organ donation in Australia go up. We’re now at 14.9 donors per
million population and that’s up just over 11 from two years ago,’ she told reporters
at Melbourne’s Western Hospital. ‘(But) there is a long way to go before our rates
of organ donation are comparable with other countries.’4
Much of this debate is beyond the scope of an undergraduate textbook and some
aspects of the debate, particularly those relating to the use of human genetic mate-
rial in research, will only be mentioned briefly, with further references supplied for
the interested reader. Some of the controversy relates to the retention and use of
human tissue after death and the conduct of post-mortem examinations, another
topic not directly related to the regular work of nurses or midwives. However, this
latter subject has been a matter of such concern among the general public, it will
be discussed in some detail as nurses (and sometimes midwives) may find themselves
required to answer questions by anxious patients and (more probably) relatives. As
a matter of careful practice, specific questions about any matter relating to the use
of human tissue should be referred to the appropriate treating medical practitioner,
but this area of law has developed so rapidly that undergraduate nurses and mid-
wives now do need to be aware of it.
Another area where the law has developed rapidly in recent years is the develop-
ment of assisted reproductive technologies, and a short section will be included on
the legal provisions in this area.
Classifications of human tissue

Human tissue is classified in two ways for the legal consideration of its use in trans-
plantation: namely, regenerative and non-regenerative tissue. Regenerative tissue is
the tissue that can be replaced in the body by the normal process of growth and
repair. Non-regenerative tissue is all other tissue. The list in Table 10.1 provides an
example of the wide range of regenerative and non-regenerative tissue currently
being transplanted in one form or another.
302
10 • Human tissue transplantation
Table 10.1
Classification of tissue for transplant purposes
Regenerative tissue Non-regenerative tissue
blood blood vessels
bone marrow bone and cartilage
skin corneas
semen ear tissue (ossicles, tympanic membrane)
fascia
heart
hormone-producing glands (pituitary, thyroid etc)
intestines
kidneys
liver
lung
pancreatic tissue
Development of law in relation to usage of human tissue

The subject of human tissue transplantation inevitably gives rise to legal and ethical
issues. As is often the case, the law has been slow to respond to these issues. In
addition, the established common-law principles are clearly inadequate when trying
to cope with the complexities of the issues involved. Common-law principles have
for many years recognised only a limited right to deal with a person’s body after
death — usually only for the purposes of burial. Legislation in relation to the func-
tions of the coroner clearly established the right to conduct post-mortems, and
permission to do so could also be given by the surviving spouse or relative. Common-
law limitations also prohibited the use of dead bodies and the retention of body
organs for the teaching of anatomy and research purposes. Accordingly, it was neces-
sary for parliaments to allow such procedures by passing the appropriate legislation,
known as the Anatomy Act in most states and territories.
The common law has also never permitted the removal of body parts or organs
from a living person. Such a principle rested largely on the belief that the removal
of a body part or organ from a living person, even with the person’s consent, was
not of benefit to that person and technically constituted the criminal offence of
maim. In addition, the increasing amount of tissue transplantation, particularly
kidney transplants, highlighted the fact that the state of the law was not sufficient
to deal with the legal problems that arose. Those problems included the issue of
consent generally, the removal of tissue from living persons and the need to make
specific provisions concerning children.
The need for parliaments to legislate in this area was first recognised in Australia
in 1976, when the then Commonwealth Attorney-General, Mr R J Ellicott, referred
the whole matter of human tissue transplantation to the Australian Law Reform
Commission under wide-ranging terms of reference. The commission produced its
report in 1977, entitled Human Tissue Transplants.5 One of the main features of the
report was the proposed draft legislation, which was set out in Appendix 4 to
the report. It was intended that the draft legislation, presented to the Common-
wealth Government in 1977, would be used as a model by all of the Australian
303
states and territories in relation to this subject. The subject of tissue transplantation
is an area within which the states and territories have power to legislate and hence
the Commonwealth Government could not impose the draft legislation on the
states or territories — it could only put it forward as a suggested model. The Com-
monwealth Government used the draft legislation proposed by the Australian Law
Reform Commission as the basis for the Transplantation and Anatomy Act 1978 in
the Australian Capital Territory.
Following the lead of the Commonwealth Government in the Australian Capital
Territory, all states and territories have now introduced legislation based on
the Commonwealth’s proposed draft legislation.6 The legislation deals with such
matters as:
• the donation of tissue by living persons, particularly with reference to children
and the issue of consent (blood donations are dealt with separately);
• the donation of tissue after death;
• the donation of tissue for anatomical purposes;
• issues arising in relation to post-mortem examinations;
• a prohibition of trading in tissue;
• a definition of death.
The even more complex legal issues arising from in-vitro fertilisation and embryo
transplants are not dealt with in the legislation and have required further
legislation by most jurisdictions in recent years. This is discussed further later in
this chapter.
The legislation varies to some extent between the states and territories, but in
this area there is a significant degree of commonality between them, largely because
they have adopted the draft legislation of the Australian Law Reform Commission.
This particular piece of legislation is of importance to all hospitals and healthcare
personnel. It is of greatest significance to nursing and medical staff in intensive care
and other such units because the majority of organs for transplantation still tend
to come from patients who die from severe trauma, particularly as a result of motor
vehicle accidents, although donation after cardiac death is increasing.7
Each of the states and territories has adopted the parts or sections of the proposed
draft legislation that they have considered relevant or necessary for their purposes;
not all matters mentioned above have been dealt with, however. As an example,
South Australia and Western Australia have not adopted the definition of death as
proposed, and hence reference to that will not be found in their respective Acts.
Also, New South Wales makes no reference to donations for anatomical purposes
or schools of anatomy, as such matters are covered in the New South Wales Anatomy
Act 1977.
Imogen Goold makes the observation that:
In Australia, human tissue use is regulated by a piecemeal, sometimes
conflicting body of legislation and case law. In general, these laws have been
developed to deal with specific uses of tissue, such as the Human Tissue Acts,
304
and hence do not form a body of rules that can be easily extrapolated to the
emerging uses of tissue. The acts are limited in scope and deal only with
consent to the removal of tissue, not with its subsequent uses. They also
only cover the removal of tissue for transplantation, medical and research
purposes, which are rapidly becoming only a few of the many uses to which
human tissue may now be put.8
The provisions of the various statutes are set out in Table 10.2 and are discussed
below.
The requirement for consent in live donations
In situations where tissue is to be donated from a live donor the requirement for
valid consent is critical, as donating tissue carries with it a degree of risk due to the
need to obtain the tissue from a live individual. However, this risk becomes even
more significant if the tissue removed will not regenerate. The requirements for
consent to removal of non-regenerative tissue for donation are quite rigorous, and
understandably so, particularly where children are concerned. In 2007 the National
Health and Medical Research Council (NHMRC) endorsed the guidelines entitled
Organ and Tissue Donation by Living Donors: Guidelines for Ethical Practice for Health
Professionals.9 The document points out that, at the time of writing, in Australia,
40 percent of kidney donations were from living donors. This figure is likely to be
higher now.
The guidelines themselves embody a set of principles, which are a valuable guide
to healthcare professionals in terms of addressing the issues and concerns of living
donors, and these are set out in Box 10.2.
For nurses and midwives who are interested in this topic the NHMRC website
(www.nhmrc.gov.au) also contains excellent advice for people in the community
who are contemplating donation. The booklet, Making a Decision about Living
Organ and Tissue Donation10 also identified a set of principles for the benefit of the
public. They are as follows:
• Living donation must be altruistic
Altruism means that the donor is thinking only about the other person and is
not expecting to receive rewards.
• The decision to donate must be free and voluntary
People should not be forced or influenced by emotional pressures or promises
of rewards like money.
• Both donors and recipients must be fully informed
Donors and recipients need clear information so that they can understand
what the risks are and what might happen in the future.
• Everyone involved in the decision-making process must be treated with
respect and care
Whether a donation goes ahead or not, the donor assessment and transplant
teams follow the ethical principles outlined in this booklet and work towards
the best possible results for the donor and recipient.
305
306
Table 10.2
State and territory provisions for blood and tissue donation
State/territory Tissue donation Tissue donation by Blood donations Donation of Tissue donation Post-mortem Trading Definition
legislation by live adults live children tissue after for anatomical examination in tissue of death
death purposes
Transplantation Section 8 Section 12 c/f Section 20 adults; Sections Sections 36–41 Sections 32–35 Prohibited Section 45
and Anatomy regenerative parent and guardian; section 21 27–31 under
Act 1978 (ACT) tissue; section 9 section 13 children section 44
non-regenerative regenerative tissue
tissue — only to family or
relative; section 14
non-regenerative
— many restrictions
Human Tissue Section 7 Section 10 Section 19 adults; Sections See provisions of Sections Prohibited Section 33
Act 1983 regenerative regenerative tissue section 20 23–27 Anatomy Act 28–31D under
(NSW) tissue; section 8 only and only to children 1977 (NSW) section 32
non-regenerative parent, brother or
tissue sister (many
requirements)
Transplantation Section 8 No provision for Section 14 adults; Sections Sections Section 20 Prohibited Section 23
and Anatomy regenerative and children no provision for 18–22 22A–22D coronial consent under
Act 2011 (NT) non-regenerative children to removal of sections
tissue tissue; sections 22E–22F
19–23 of
Coroners Act
(NT) coronial
consent to
autopsy
Transplantation Section 10 Sections 12B–12E Section 17 adults; Sections Sections 31–38 Sections 26–30 Prohibited Section 45
and Anatomy regenerative regenerative only section 18 22–25 under
Act 1979 (Qld) tissue; section 11 children sections
non-regenerative 40–42
tissue
State/territory Tissue donation Tissue donation by Blood donations Donation of Tissue donation Post-mortem Trading Definition
legislation by live adults live children tissue after for anatomical examination in tissue of death
death purposes
Transplantation Section 9 Section 12 general Section 18 adults; Sections Sections 29–34 Sections 25–28 Prohibited Not
and Anatomy regenerative prohibition; section section 19 21–24 under defined
Act 1983 (SA) tissue; section 10 13 only for children section 35
non-regenerative regenerative tissue
tissue
Human Tissue Section 7 Section 12 Section 18 adults; Sections Sections 20–34 Sections 25–28 Prohibited Section
Act 1985 (Tas) regenerative regenerative tissue section 19 21–24 under 27A
tissue; section 8 only children section 35
non-regenerative
tissue
Human Tissue Section 7 Section 14 non- Section 21 adults; Sections Sections 32–37 Sections Prohibited Section 41
Act 1982 (Vic) regenerative regenerative tissue section 22 23–26 26A–26D under
tissue; section 8 expressly prohibited; children non-coronial section 27
non-regenerative section 15 autopsy;
tissue regenerative tissue sections 27–29
only of Coroners Act
1985 (Vic)
Human Tissue Section 8 Section 12 general Section 18 adults; Sections Anatomy Act Sections 25–28 Prohibited Not
and Transplant regenerative prohibition; section section 19 22–24 1930 (WA) under defined
Act 1982 (WA) tissue; section 9 13 regenerative children sections
non-regenerative tissue only allowed 29–30
tissue for family members
307
BOX 10.210
PRINCIPLES IN THE NHMRC GUIDELINES, ORGAN AND TISSUE
DONATION BY LIVING DONORS: GUIDELINES FOR ETHICAL
PRACTICE FOR HEALTH PROFESSIONALS
a) Whether the donor and recipient are related or unrelated, living organ and tissue
donation is an act of altruism and human solidarity that potentially benefits those
in medical need and ultimately society as a whole.
b) Respect for all those involved should be demonstrated through:
i) decision-making processes that ensure that both donors and recipients are
fully informed about potential risks and about alternatives to transplantation;
ii) ensuring that decisions about donation are free of coercion of any kind
including undue emotional pressures or any material incentives such as money
or in-kind rewards.
c) In assessing whether to proceed with donation, the autonomy and welfare of the
donor take precedence over the needs of the recipient to receive an organ or tissue.
d) Living donation should take place only when there are minimal risks of short and
long-term harm to the donor, with no clinically significant loss of a bodily
function, and a high likelihood of a successful outcome for the recipient.
e) For those who cannot make informed decisions (for example young children or
other dependent persons) to be considered as potential living donors there must
be: minimal risks to the donor; no alternative donors available; and the
prospective recipient must be a close relative of the child or dependent adult.
There must be an independent judgement that the donation is in the overall best
interests of the potential donor.
f) Conflicts of interest should be minimised through the use of independent and
separate assessment, advice and advocacy for potential donors.11
• Cultural issues must be considered in planning programs and working

with families
Translators are important to give information to people whose first language is
not English. The health professionals involved need to understand and be
sensitive to the ways in which culture and beliefs can influence decisions about
donation.12
ADULTS
The requirement to obtain consent for the removal of regenerative tissue is similar
for all statutes, but the extent of detail differs. For example, in the Transplantation
and Anatomy Act 1978 (ACT), section 8 merely states that:
A person may give his or her written consent to the removal from his or her
body of specified regenerative tissue (other than blood) —
a) for the purpose of the transplantation of the tissue to the body of
another living person; or
b) for use for other therapeutic purposes or for medical or scientific purposes.
308
In contrast section 9 of the Transplantation and Anatomy Act 1983 (SA) has quite
detailed provisions, stating that:
1) A person who—
a) is not a child; and
b) in the light of medical advice furnished to him understands the nature
and effect of the removal,
may, by writing signed by him otherwise than in the presence of any
members of his family, consent to the removal from his body of
regenerative tissue, other than blood, specified in the consent—
c) for the purpose of the transplantation of the tissue to the body of
another living person; or
d) for use for other therapeutic purposes or for medical or scientific purposes.
2) A person who has given a consent referred to in subsection (1) may, at any
time before the removal of the regenerative tissue to which the consent
applies, revoke, either orally or in writing, his consent to the removal.
Whilst not every statute specifies the need for the nature and effect of the removal
to be explained to the person, as has been discussed in Chapter 4, those require-
ments are part of the common law in relation to consent to treatment. All statutes
require the consent to be in writing.
Under all statutes there is a further requirement for a 24-hour ‘cooling-off period’
before any non-regenerative tissue can be donated and a specification that the time
of consent shall be recorded. Some statutes also offer the option of a medical prac-
titioner issuing a certificate in relation to consent; for example, section 10 of the
Transplantation and Anatomy Act 1978 (ACT).
CHILDREN
Obviously removal of tissue from children carries additional complex ethical prob-
lems, particularly because the children are not legally able to make the decision,
which means that someone else has to do so on their behalf. Living donation of
regenerative tissue from children is only permitted in strict circumstances, and living
donation of non-regenerative tissue is only permitted in the Australian Capital Ter-
ritory and then under the most stringent circumstances, as discussed below.
The National Health and Medical Research Council (NHMRC) guidelines enti-
tled Organ and Tissue Donation by Living Donors: Guidelines for Ethical Practice for
Health Professionals contains unequivocal advice for ethical decision-making on
behalf of children and dependent adults, which is set out in Box 10.3.
Probably as a result of the ethical complexity of this issue, the requirements for
children differ considerably between jurisdictions. Some statutes make a clear dis-
tinction between parents and guardians for the purposes of giving consent within
the legislation; for example, section 12 of the Transplantation and Anatomy Act 1978
(ACT). Most statutes limit the possible recipients of regenerative tissue from
children to a range of family members — family members or relatives of the
child, unspecified (ACT, Tas, WA); brothers and sisters (NSW, Qld, Vic); a parent,
undefined (Qld, Vic); a parent whether biological, step or adoptive (NSW); and
309
BOX 10.310
ETHICAL DECISION-MAKING ON BEHALF OF CHILDREN AND
DEPENDENT ADULTS
Decisions to permit a child or dependent adult to be a living donor will be ethically
acceptable only where:
a) the risks and discomforts to the donor are minimal and the tissue is regenerative;
b) the donation is to a person with whom the donor has an intimate or ongoing
relationship (ie a close relative);
c) the donation is a last resort in treatment for the recipient;
d) there are no alternative donors;
e) the proposed transplant is of proven efficacy and of great expected benefit to the
recipient;
f) there is an independent judgement that the donation is in the donor’s overall
best interests;
g) the parents or guardians consent and the child or dependent adult (if she or he is
able to do so) agrees or assents; and
h) where required by law, a Court or tribunal authorisation has been obtained to
undertake a non-therapeutic procedure on a child or dependent adult on the
basis that the procedure is in his or her interests.13
unspecified but must be specified in the consent (SA). In most cases the require-
ments are extremely onerous.
Only the Australian Capital Territory makes provision for the removal of non-
regenerative tissue from a child for transplantation and this is in contrast to the
NHMRC advice above. The Northern Territory legislation is silent on the matter,
and other jurisdictions, such as Victoria, expressly prohibit removal of non-
regenerative tissue from a child.
Removal of blood
ADULTS
Consent to the removal of blood from adults is relatively non-controversial. Section
18 of the Human Tissue and Transplant Act 1982 (WA) contains the following
provision:
A person who —
a) has attained the age of 18 years; and
b) is of sound mind, may consent to the removal of blood from his body
for transfusion to another person or for use of the blood or of any of
its constituents for other therapeutic purposes or for medical or
scientific purposes.
Most of the statutes have a similar format.
310
CHILDREN
With the exception of the Northern Territory legislation, which is silent on the
matter, all statutes make provision for a parent to give consent to the removal of
blood from a child, usually with some provision for a medical practitioner to provide
an assurance that the removal will not be harmful to the child and, in most cases,
with the agreement of the child. Section 20A of the Human Tissue Act 1983 (NSW)
makes specific provision for where the child is too young to be able to agree. This
provision is unusual and so is set out in full:
Section 20A Consent to removal of blood from child if child unable
to agree
A parent or guardian of a child who is under the age of 16 years may
consent in writing to the removal of blood from the child’s body without
the consent of the child for the purpose of using the blood in the treatment
of the child’s parent (being the biological parent, step-parent or adoptive
parent), brother or sister, but that consent is only effective if:
a) a medical practitioner (other than the medical practitioner responsible
for treating the child’s parent, brother or sister) certifies in writing
that, in the opinion of the medical practitioner:
i) the child is unable to understand the nature and effect of the
removal of blood from the child’s body, and
ii) any risk to the child’s health (including psychological and emotional
health) caused by the removal of the blood is minimal, and
b) a medical practitioner certifies in writing that the parent, brother or
sister is likely to die or suffer serious damage to his or her health unless
blood removed from the child is used in the treatment.
Donation of tissue after death

In the past, prior to artificial ventilation or perfusion, if the heart and/or lungs
failed, adequate tissue perfusion would automatically cease. Although the individual
cells of the body would continue to function until the remaining cellular oxygen
supply was used up, there would have been nothing more that could be done to
save a person’s life.14 The person would have been dead, and clinically recognisably
dead. Thus death could be defined as and determined by the failure of tissue perfu-
sion, or what was commonly referred to as ‘cardiac death’.
However, today, with the introduction of chemical and electrical cardiac stimula-
tion, increased knowledge of cellular physiology and artificial ventilation, tissue
perfusion need not necessarily cease. So tissue perfusion may be prolonged, if not
indefinitely, at least for considerably longer than might previously have been
anticipated.
This understanding that a person may not independently be able to sustain cir-
culation or respiration and yet might be kept perfused by artificial, scientific means
required a re-definition of death. Death no longer necessarily occurred when a
patient stopped breathing or their heart stopped beating — the brain would have
to have suffered tissue anoxia for death to occur. As long ago as 1968 a committee
311
of the Harvard Medical School published a set of criteria for determining when
death had occurred, which recommended that death should be understood in terms
of a ‘permanently non-functioning brain’.15 It has been necessary to clarify this situ-
ation in statute to enable perfused organs to be removed from patients who were
recognised to be brain dead. As Windeyer J observed in Mount Isa Mines Ltd v
Pusey, ‘Law march[es] with medicine but in the rear and limping a little’.16
All the statutes except the Transplantation and Anatomy Act 1983 (SA) and the
Human Tissue and Transplant Act 1982 (WA) provide a definition of death which
includes a definition of brain death. All the statutes use similar if not identical
language. For example, section 27A of the Tasmanian Human Tissue Act 1985 states
that death occurs when:
For the purposes of the law of Tasmania, a person has died when there has
occurred —
a) irreversible cessation of all function of the brain of the person; or
b) irreversible cessation of circulation of blood in the body of the person.
The mechanisms for the determination of brain death may also be included in
the legislation. Alternatively, a specific protocol should be established in line with
accepted international medical practice. The question of when brain death has
occurred and how it should be diagnosed continues to be a topic of significant
controversy.17 The Australian and New Zealand Intensive Care Society (ANZICS)
has undertaken excellent work recently and released The ANZICS Statement on
Death and Organ Donation.18 ANZICS states that the main purposes of the state-
ment are:
• to provide a standard for intensivists and other healthcare workers in relation
to the determination of death and the conduct of organ and tissue donation,
including donation after cardiac death (DCD); and
• to provide assurance to the Australian and New Zealand communities that
determination of death and the conduct of organ and tissue donation are
undertaken with diligence, integrity, respect and compassion, and in
accordance with available medical evidence and societal expectations.19
Ongoing difficulties with organ donation

Although tissue transplantation is extremely successful, there are still difficulties in
relation to the availability of organs, particularly in relation to donation after death.
All statutes make provision for the donation of tissue after death. Under section 26
of the Human Tissue Act 1982 (Vic) where a person has died in hospital or where
the body has been brought to the hospital, a designated officer may authorise the
removal of tissue for transplantation or other scientific or medical or therapeutic
purposes where:
• the deceased person had, at any time, in writing, or during his last illness,
orally in the presence of two witnesses, expressed the wish for, or consented to,
the removal after his death of tissue from his body for such a purpose or use;
312
• where the senior available next of kin of the deceased person makes it known
to the designated officer that he consents to the removal of tissue from the
body of the deceased person for such a purpose or use; or
• where the designated officer, after making such inquiries as are reasonable in
the circumstances, is unable to ascertain the existence or whereabouts of the
next of kin of the deceased person and has no reason to believe that the
deceased person had expressed an objection to the removal after his death of
tissue from his body for such a purpose or use.
The most common forms of agreement in writing in Australia are through the
drivers’ licence scheme or through organ donor cards. Both these approaches are
known as ‘opting-in’ systems; that is, the person makes a positive decision to become
an organ donor. Australia has an Organ Donor Registry (AODR) whose legal status
was amended in 2005 to require signed written consent for donation in order to
comply with human tissue legislative requirements in each jurisdiction.20 Other
countries have taken a different approach and have implemented an ‘opting-out’
system, where the body is presumed to belong to the state to be disposed of as it
sees fit unless the person states an express wish to the contrary.
Post-mortem examinations
Over the past few years there have been a number of serious incidents relating to
the conduct of post-mortem examinations and the retention and/or disposal of
human tissue following post-mortem examinations.21
The events and subsequent inquiry into the practices at the Institute of Forensic
Medicine in Glebe, Sydney, led to the passing of the Human Tissue and Anatomy
Legislation Amendment Bill 2003 which made changes to the Human Tissue Act 1983
(NSW), the Anatomy Act 1977 (NSW) and the Coroners Act 1980 (NSW).22 The
Bill was described as follows:
These amendments protect the rights of individuals to control what happens
to their bodies after their death. They also protect the rights of families to
be informed of, and to give consent to, procedures that are undertaken on
the bodies of family members who have died. The bill balances this respect
for individuals’ rights with the recognition that society has some legitimate
interest in the use of human tissue, which should not be contingent on an
individual’s consent. Accordingly, the bill protects the use of tissue for
coronial purposes for the investigation of crime and the proper functioning
of the judicial system. The bill recognises the importance of medical
teaching and research and allows these important interests to be advanced
without offending the values of the general community. The bill represents
a balance between the benefits that accrue from access to human tissue for
therapeutic purposes, research, education and training on the one hand and
respect for diverse cultural, religious and individual values and personal
autonomy on the other hand.23
South Australia24 and Western Australia25 also undertook reviews into forensic
practices, as did the NHMRC Australian Health Ethics Committee.26 In 2002 the
313
Australian Health Ministers’ Advisory Council Subcommittee on Autopsy Practice

issued The National Code of Ethical Autopsy Practice.27 This code has resulted in a
number of states and territories amending their legislation in relation to autopsy
(or post-mortem examination as it is most often called) and most statutes have
issued revised policy documents to meet the requirements of the national code.
Whilst the conduct of post-mortem examinations is unlikely to be part of the
experience of undergraduate nursing or midwifery students, or indeed the majority
of practising nurses and midwives, nevertheless the conduct of post-mortem exami-
nations and the rights of patients and their relatives in relation to their bodies or
the bodies of their loved ones are critical and worrying issues, and nurses and mid-
wives may need to reassure patients and relatives about the changes that have been
put in place since the events referred to above occurred.
Assisted reproductive technology (ART) and donation of

reproductive tissue
Another area of law that has seen rapid developments over the past 5 years is that
of assisted reproductive technology (ART). ART is defined as ‘the application of
laboratory or clinical technology to gametes (human egg or sperm) and/or embryos
for the purposes of reproduction’.28 Again, this is a highly specialised area of health-
care and it is unlikely that most undergraduate students will work in this area,
although it may be of interest to midwives, particularly in antenatal care. However,
ART is becoming far more common and is likely to increase with the increasing
demographic age of women having their first child, thus it is highly likely that nurses
and midwives will encounter parents and children who have been involved in this
technology in some way.29 A brief overview of recent developments in the law is
provided, with some further references for the interested reader. The NHMRC
website on ART reports as follows:
There were 70,541 ART treatment cycles reported in Australia and New
Zealand in 2009, a 13.9% increase on 2008 and a 48.0% increase on 2005.
Of these, 92.4% were in Australian fertility centres and 7.6% were in New
Zealand fertility centres. Women used their own oocytes/embryos in more
than 95% of treatments (autologous), and 33.8% of all cycles used frozen/
thawed embryos. It is estimated that more than 35,000 women undertook
autologous ART treatment in Australia and New Zealand in 2009. On
average, 1.8 fresh and/or thaw cycles per woman were performed in 2009.30
The NHMRC Ethical Guidelines on the use of Assisted Reproductive Technology in
Clinical Practice and Research (the ART Guidelines) were issued in 2004 by the
NHMRC and updated in 2007 to reflect amendments to the Research Involving
Human Embryos Act 2002 (Cth) (the RIHE Act) and the Prohibition of Human
Cloning for Reproduction Act 2002 (Cth) (PHCR Act). The ART Guidelines address
both clinical and research aspects of assisted reproductive technology. The guidelines
are primarily intended for ART practitioners, researchers, infertility clinic admin-
istrators, Human Research Ethics Committees and governments.31 Current repro-
ductive technologies include the following.
314
OVULATION INDUCTION
A series of hormone injections will be given to the woman in order to stimulate
egg growth and ovulation. If ovulation can be successfully induced, conception may
occur naturally.
ARTIFICIAL INSEMINATION
Artificial insemination is used in cases where the male has a low sperm count, a
high number of abnormal sperm or the woman has sperm antibodies present in her
cervical mucus. Sperm is treated in the laboratory to increase the chances of fertili-
sation. Large numbers of sperm are then inserted directly into the uterus for easy
access to the fallopian tubes.
IVF (IN VITRO FERTILISATION)
IVF is used to treat infertility that arises from blockages of the fallopian tubes,
endometriosis, abnormal sperm and some cases of unexplained infertility.
The woman is treated with hormones over a number of weeks to stimulate the
growth of several eggs in the ovary. When ripe, the eggs are removed from the ovary
and put into a dish with the partner’s (or donor’s) sperm. The fertilised eggs are
then grown in the laboratory for a few days before being placed into the uterus.
GIFT (GAMETE INTRAFALLOPIAN TRANSFER)
This procedure is the same as that for IVF except that fertilisation takes place inside
the woman’s body. The eggs and sperm are collected and placed directly into the
fallopian tubes for fertilisation to occur. GIFT is used for cases of endometriosis,
cervical disorders and some types of male infertility. GIFT is suitable only for
women with no abnormalities in the fallopian tubes.
ZIFT (ZYGOTE INTRAFALLOPIAN TRANSFER)
This is also the same procedure as IVF except the very early embryo (zygote) is
placed directly into the fallopian tube. This procedure is undertaken when there are
abnormal sperm and/or problems with the ability of the sperm to fertilise the eggs.
ICSI (INTRACYTOPLASMIC SPERM INJECTION)

This is a technique in which a single sperm is inserted directly into the egg. Eggs
are obtained the same way as for IVF and then fertilised by injecting a single sperm
into them. The fertilised eggs can be transferred to the woman’s fallopian tubes or
grown in the laboratory for a couple of days and then transferred to the uterus.
EPIDIDYMAL AND TESTICULAR SPERM EXTRACTION
Sperm are removed from the epididymis or directly from the testis using a needle.
Fertilisation is performed by ICSI (see above). This treatment is used in cases of
male infertility (azoospermia) and spermatic cord abnormalities. Usually enough
sperm can be collected so that samples can be frozen for later use if required.
FREEZING OF SPERM AND EMBRYOS
If more embryos are produced through IVF than are needed for transfer into the
uterus of the patient, the extra embryos can be frozen. The stored embryos can be
315
used later if the patient fails to become pregnant or if the couple wishes to have
more children through IVF at a later date.
There is a limit to the number of years embryos can be stored frozen and laws
governing this may differ in each state. Similarly, sperm can be frozen for use in
subsequent IVF cycles or as insurance against infertility due to procedures such as
cancer therapies, vasectomy or prolonged absence from a partner (such as men in
military service may experience). Sperm can also be frozen and kept in sperm donor
banks.
DONOR EGGS, EMBRYOS AND SPERM

For women who have ovarian failure, men who do not produce sperm, or couples
whose eggs fail to fertilise, the use of donor eggs, embryos or sperm may be an
option. Older women may also wish to use donor eggs from younger women to
overcome the problems of ageing.32
Although the use of ART has been increasing since the first Australian IVF baby
was born in 1980, there is still concern about the lack of accurate data on success
rates in terms of live, healthy births and the overly optimistic attitude the com-
munity seems to have towards ART as a complete and infallible solution for infer-
tlility.33 Clearly the development of these techniques has raised a range of ethical
and legal challenges over time, including the need to determine parentage, the ques-
tion of payment for donors and surrogates, and even more potentially controversial
issues such as cloning.
CONCLUSION
This chapter has examined the provisions of the various pieces of legislation dealing
with human tissue transplantation and explored some of the ethical and clinical
dilemmas inherent in the developments of these technologies. In addition, the
chapter has briefly examined the law relating to assisted reproductive technologies
and some of the current issues in relation to post-mortem practice in Australia. The
chapter has provided a wide range of guidance documents and resources with
further information on these complex and developing areas as there is no doubt
that these issues will prove to be challenges for law and ethics in the future and will
require serious thought as the readers progress in their nursing careers.
Endnotes
Note: All links given below were last accessed on 2011, http://www.nursingreview.com.au/
20 January 2012. pages/section/article.php?s=Breaking+News&
1) Scott R, The Body as Property, Allen Lane, idArticle=22961.
London, 1981. 5) Australian Law Reform Commission, Report
2) Ibid. no. 7, Human Tissue Transplants, AGPS,
3) Herring J, Medical Law and Ethics, 3rd ed, Canberra, 1977, http://138.25.65.50/au/
Oxford University Press, Oxford, 2010, other/alrc/publications/reports/7/4_
p 419. Foreword.html.
4) Australian Associated Press, ‘Record number 6) Transplantation and Anatomy Act 1978
of organ donors in 2011’, Nursing Review, (ACT); Human Tissue Act 1983 (NSW);
316
Transplantation and Anatomy Act 2011 (NT); 18) Australian and New Zealand Intensive Care
Transplantation and Anatomy Act 1979 Society (ANZICS), The ANZICS Statement
(Qld); Transplantation and Anatomy Act on Death and Organ Donation, edition 3.1,
1983 (SA); Human Tissue Act 1985 (Tas); ANZICS, Melbourne, 2010.
Human Tissue Act 1982 (Vic); Human Tissue 19) Ibid, p 9.
and Transplant Act 1982 (WA).
20) Ibid, p 34.
7) Bellomo R and Zamperetti N, ‘Defining the
21) Redfern M, QC, The Report of the Royal
vital condition for organ donation’, (2007)
Liverpool Children’s Inquiry, House of
Philosophy, Ethics, and Humanities in
Commons, London, 2001; Walker B,
Medicine 2:27, http://www.peh-med.com/
Report into Post-mortem and Anatomical
content/2/1/27.
Examination Practices of the Institute of
8) Goold I, ‘Sounds suspiciously like property Forensic Medicine, New South Wales
treatment: Does human tissue fit within Government, Sydney, 2002.
the common-law concept of property?’
(2006) University of Technology Sydney Law 22) Burton C (Parliamentary Secretary),
Review 3. Hansard extract, New South Wales
Legislative Assembly, 28 May 2003 (article
9) National Health and Medical Research 5), http://www.parliament.nsw.gov.au/prod/
Council (NHMRC), Organ and Tissue parlment/hansart.nsf/V3Key/
Donation by Living Donors: Guidelines for LA20030528005.
Ethical Practice for Health Professionals, 2007,
http://www.nhmrc.gov.au/_files_nhmrc/ 23) Ibid.
publications/attachments/e71.pdf. 24) Selway B M, QC, Report into the retention
10) NHMRC, Making a Decision about Living of body parts after post-mortems (sic),
Organ and Tissue Donation, 2007, http:// Solicitor General South Australia, 6 August
www.nhmrc.gov.au/_files_nhmrc/ 2001, (unpublished) cited in The Royal
publications/attachments/e70.pdf. College of Pathologists of Australasia, Policy:
Autopsies and the Use of Tissues Removed from
11) NHMRC, Organ and Tissue Donation by
Autopsies, Approval Date: July 1993,
Living Donors: Guidelines for Ethical Practice
Revised: October 2002, no. 1 of 1993,
for Health Professionals, 2007, http://
http://www.rcpa.edu.au/static/File/Asset%20
www.nhmrc.gov.au/_files_nhmrc/
library/public%20documents/Policy%20
publications/attachments/e71.pdf, p 6.
Manual/Policies/Autopsies%20and%20
12) NHMRC, Making a Decision about Living the%20Use%20of%20Tissues%20
Organ and Tissue Donation, 2007, http:// Removed%20from%20Autopsies.pdf.
www.nhmrc.gov.au_files_nhmrc/
25) Kucera B (Minister for Health), Western
publications/attachments/e70.pdf, p 5.
Australian Government Hansard, 2001,
13) NHMRC, Organ and Tissue Donation by p 4495. See also, Hansard, Thursday 13
Living Donors Guidelines for Ethical Practice April 2006 per The Hon. Giz Watson,
for Health Professionals, 2007, http:// http://www.parliament.wa.gov.au/hansard.
www.nhmrc.gov.au/_files_nhmrc/
publications/attachments/e71.pdf, p 27. 26) NHMRC, Australian Health Ethics
Committee, Organs Retained at
14) Mason J K and McCall Smith R A, Law and Autopsy — Ethical and Practical Issues,
Medical Ethics, Butterworths, London, 1987, Commonwealth of Australia, Canberra,
p 209. 2001.
15) Ad Hoc Committee of the Harvard Medical 27) Australian Health Ministers’ Advisory
School to examine the definition of brain Committee, Subcommittee on Autopsy
death: a definition of irreversible coma Practice, The National Code of Ethical
(1968) Journal of the American Medical Autopsy, South Australian Department of
Association 205: 337–40. Human Services, Adelaide, 2002.
16) Mount Isa Mines Ltd v Pusey (1970) 125
28) NHMRC, ‘Assisted Reproductive
CLR 383 at 395.
Technology (ART)’, 2011, http://
17) Bernat J, ‘How the distinction between www.nhmrc.gov.au/health-ethics/
“irreversible” and “permanent” illuminates australian-health-ethics-committee-ahec/
circulatory–respiratory death determination’, assisted-reproductive-technology-art/
(2010) Journal of Medicine and Philosophy 35 assisted-.
at 242–55.
317
29) O’Connor V and Johnson K, ‘Editorial: 31) Yang Y A et al., ‘Assisted Reproductive
Delaying childbearing — ensuring life Technology in Australia and New Zealand’,
choices are informed’, (2005) Australian Australian Policy Online, 2009, http://
Family Physician 34 (3); Quinn F, ‘We are apo.org.au/research/assisted-reproductive-
having trouble conceiving …’, (2005) technology-australia-and-new-zealand-
Australian Family Physician 34 (3), http:// 2009.
www.racgp.org.au/afp/200503/13314; 32) McArthur S, ‘Infertility Fact File: ABC
Mounce G, ‘Assisted reproduction: What do Health and Wellbeing Online’, 2011, http://
midwives need to know?’ Midwives, 2009, www.abc.net.au/health/library/
http://www.rcm.org.uk/midwives/in-depth- stories/2007/05/30/1919840.htm#p3-.
papers/assisted-reproduction-what-do- 33) Bell K, ‘An overview of assisted reproduction
midwives-need-to-know/. in Australia and directions for social
30) NHMRC, ‘Assisted Reproductive research’, (2006) Australian Journal of
Technology (ART)’, 2011, http:// Emerging Technologies and Society 4 (1) at pp
www.nhmrc.gov.au/health-ethics/australian- 15–27, http://www.swinburne.edu.au/
health-ethics-committee-ahec/assisted- hosting/ijets/journal/V4N1/V4N1abstract_
reproductive-technology-art/assisted-. bell.htm.
318
Chapter 11
Mental health
In the development of modern day healthcare systems overborne by advances in

science and technology, the provision of care and treatment for people suffering
from mental illness has had a chequered and somewhat shameful history. From the
early beginnings of European settlement in Australia until comparatively recent
times, the provision of mental health services for those in need has been character-
ised by social stigma, community rejection and custodial institutional care.
Fortunately progress has been made. The community at large is slowly recognising
that mental health is as important as physical health in the development of better
individual and community health strategies. In addition, a lot of the stigma attached
to mental illness is slowly being eroded by public education and informed debate.
There has also been a move in some states and territories to separate the care of the
mentally ill from those deemed to be developmentally disabled (also referred to as
intellectually handicapped or intellectually disabled) where it is possible. More and
more, where the patient’s condition permits, mental healthcare is moving away from
long-term institutional care to community care and treatment. As a result, mental
health legislation in most of the states and territories is now reflecting that trend,
providing for a variety of community-oriented care and treatment orders.
The framework for the provision and regulation of mental health services is
embodied in legislation. All of the states and territories have reviewed their mental
health legislation and effected considerable changes consistent with the United
Nation’s Principles for the Protection of Persons with Mental Health Care, the
Australian Health Minister’s Mental Health Statement of Rights and Responsibili-
ties, and the National Mental Health Plan.
The Australian Government was a major contributor in drafting the abovemen-
tioned United Nation’s Principles, which were adopted by resolution of the United
Nation’s General Assembly in 1991.
The principles stipulate that all persons have the right:
• to the best available mental healthcare;
• to be treated with humanity and respect for the inherent dignity of the human
person;
319
• to protection from economic, sexual and other forms of exploitation, physical

or other abuse, and degrading treatment;
• to be free of discrimination;
• to exercise all civic, political, economic, social and cultural rights.
There are also more specific, detailed provisions contained within the principles,
asserting matters such as restrictions on involuntary detention, the right to judicial
review of detention as well as the objective of the least restrictive environment for
treatment purposes.
The National Mental Health Statement of Rights and Responsibilities was
adopted by all states and territories in 1991. The statement essentially restates the
rights and objectives encompassed within the United Nation’s Principles. To support
the National Mental Health Statement the states and territories endorsed the
National Mental Health Plan in 1992. The aims of that process are to:
• set a clear direction for the future development of mental health services in
Australia;
• promote the mental health of Australians and, where possible, prevent the
development of mental health problems and mental disorders;
• reduce the impact of mental disorders on individuals, families and the
community; and
• establish a framework to ensure the rights of people with mental illness are
protected.
The above activities have acted as the impetus for significant changes in mental
health legislation in each of the states and territories.
As is common with most healthcare legislation in Australia, the mental health
legislation varies between the states and territories. Most now have separate, but
complementary, legislation in relation to people with intellectual or other disabilities
as distinct from mental illness. South Australia deals with intellectual disability as
well as traditional psychiatric illness in its mental health legislation. In the Australian
Capital Territory the distinction is not specifically addressed and is presumably left
to the treating psychiatrist or officially determined guidelines to determine who
does or does not come under the provisions of the legislation for the purposes of
determining treatment.
All of the states and territories are quite clear and specific in their legislative
objectives, based predominantly on the principles identified in the National Mental
Health Statement. For example, section 3 of the New South Wales Mental Health
Act 2007 spells out the objects of the Act in relation to the care, treatment and
control of mentally ill and mentally disordered persons as follows:
1) The objects of this Act are:
a) to provide for the care, treatment and control of those persons who are
mentally ill or mentally disordered, and
b) to facilitate the care, treatment and control of those persons through
community care facilities, and
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11 • Mental health
c) to facilitate the provision of hospital care for those persons on a

voluntary basis where appropriate and, in a limited number of
situations, on an involuntary basis, and
d) while protecting the civil rights of those persons, to give an
opportunity for those persons to have access to appropriate care, and
e) to facilitate the involvement of those persons and persons caring for
them, in decisions involving appropriate care, treatment and control.
As well as the above provisions, reference should be made to section 68 of the

Act that contains the principles underpinning the care and treatment of a person
with a mental illness or mental disorder. As well, section 105 sets out the objectives
for the New South Wales public health system in relation to the delivery of mental
health services.
All of the states and territories have enshrined similar objectives into their
legislation.
Legislative approach
The legislation in each of the states and territories tends to follow a similar pattern
by making provision, to a greater or lesser degree, under the following relevant
subject areas:
• definition of what persons come within the legislation for the purposes of care,
treatment and control;
• the process which must be followed to admit, detain and treat persons under
the legislation;
• provision for the types of treatment which may be given under the legislation
and the processes to be followed to do so;
• the recognition of fundamental rights of persons admitted, detained and
treated under the legislation; and
• provision of appropriate review and appeal mechanisms to ensure that persons
are not inappropriately detained and, that while they are detained, their civil
rights are protected.
A summary of, and comments on, the Mental Health Act of each state and ter-
ritory follows, highlighting the most important areas for nursing staff, particularly
in relation to the abovementioned subject areas. As always, nurses working in the
area of mental health should take the time to become familiar with the legislation
relevant to their state or territory.
Australian Capital Territory: Mental Health (Treatment and Care)

Act 1994
DEFINITIONS
With some exceptions, the dictionary at the end of the Act contains relevant defini-
tions. Unlike a majority of the other states, the ACT Act deals with persons with
a mental illness as well as persons with an intellectual disability (referred to in the
321
Act as a ‘mental dysfunction’). The dictionary provides the definitions of ‘mental

dysfunction’ and ‘mental illness’ in the following terms:
mental dysfunction means a disturbance or defect, to a substantially
disabling degree, of perceptual interpretation, comprehension, reasoning,
learning, judgment, memory, motivation or emotion.
mental illness means a condition that seriously impairs (either temporarily
or permanently) the mental functioning of a person and is characterised by
the presence in the person of any of the following symptoms:
a) delusions;
b) hallucinations;
c) serious disorder of thought form;
d) a severe disturbance of mood;
e) sustained or repeated irrational behaviour indicating the presence of
the symptoms referred to in paragraph (a), (b), (c) or (d).
Section 5 of the Act provides that a person is not to be deemed to be suffering
from mental dysfunction or mental illness by reason only that the person expresses,
or refuses or fails to express, an opinion in relation to politics, religion, law or morals,
or engages, or refuses or fails to engage, in a particular political, religious, illegal or
immoral conduct or anti-social behaviour or takes alcohol or any other drug.
References to ACAT throughout the Act are references to the Australian Capital
Territory Civil and Administrative Tribunal established pursuant to the Civil and
Administrative Tribunal Act 2008 (ACT). ACAT is the acronym used in the Act to
refer to the tribunal that hears and determines applications and reviews under the
Act in relation to both mentally dysfunctional and mentally ill persons.
ADMISSION TO AND DETENTION IN A MENTAL HEALTH FACILITY

When dealing with admissions the Act refers to a person being taken to a ‘mental
health facility’, defined in the dictionary as follows:
… a facility for the treatment, care, rehabilitation or accommodation of
mentally dysfunctional or mentally ill persons, and includes a psychiatric
institution.
Part 12, which deals with the licensing of private health facilities (ss 123–135),
defines a ‘psychiatric institution’ for the purposes of that part of the Act only.
Voluntary application for a mental health order

Section 10 makes provision for a mentally ill or mentally dysfunctional person
to apply for a mental health order on his or her own behalf. The dictionary of the
Act defines a ‘mental health order’ as a psychiatric treatment order, a community
care order or a restriction order.
In making an application for such an order on a voluntary basis, the person
is submitting themselves to the powers of ACAT (the tribunal) to make such an
order.
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Application by other people for an involuntary mental health order

Section 11 of the Act permits a person, the ‘applicant’, to make an application
to the tribunal for a mental health order in respect of another person if the applicant
believes on reasonable grounds that the health and safety of the person is at risk
because the person is unable, due to mental dysfunction or mental illness:
• to make reasonable judgments about matters relating to his or her own health
or safety; or
• to do anything necessary for his or her health or safety; or
• is likely to do serious harm to others.
Assessment order and making of a mental health order
Before the tribunal makes any mental health order, the person must be assessed
and the tribunal is required to consider that assessment (s 23). An assessment order
may be made by the tribunal if satisfied on the face of the application that the
person is mentally dysfunctional or mentally ill and the person’s health or safety is
likely to be at risk and the person is likely to do serious harm to others (s 16).
An assessment order must contain details of where and, if appropriate, by whom
the assessment is to be conducted. A person may be admitted to a mental health
facility for an assessment to be undertaken (s 19). Following the assessment, the
tribunal is required to hold an inquiry (s 24).
Section 26 provides a comprehensive listing of those matters the tribunal must
take into account in making a mental health order. For example, section 26(a)
provides that the tribunal must consider whether the person consents, refuses to
consent, or has the capacity to consent, to a proposed course of treatment, care or
support.
Once it has considered all the matters identified in section 26, the tribunal, as it
considers appropriate, may make one of the following three types of mental health
orders:
1) psychiatric treatment order;
2) restriction order;
3) community treatment order.
A psychiatric treatment order permits the tribunal to order the involuntary psy-
chiatric treatment of a person if it considers the person has a mental illness and is
likely to harm himself or herself or others and the tribunal is satisfied the treatment
will help reduce the risk of further deterioration in the person’s condition and the
treatment cannot be provided in a less restrictive environment (s 28).
The psychiatric treatment order may stipulate the mental health facility the
person is to be taken to as well as the treatment (other than electroconvulsive
therapy and psychiatric surgery), counselling, therapeutic or rehabilitation programs
the person should receive. The order may place limits on who the person may com-
municate with and it must include a statement indicating that the person the subject
of the order has the capacity to consent to the making of the order and does so, or
has the capacity to consent but refuses to do so, or does not have the capacity to
consent (s 29).
323
A restriction order, which in most circumstances would be made concurrent with

a psychiatric treatment order, permits the tribunal to order where the person is to
live or a place where he or she is to be detained (s 31).
For a mentally dysfunctional person a community treatment order may be made
where the tribunal has reasonable grounds for believing that, because of the mental
dysfunction, the person is likely to harm himself or herself or others or suffer a
serious deterioration in his or her mental or physical wellbeing unless an involuntary
treatment order is made. As well, the tribunal must be satisfied that the psychiatric
treatment order should not be made and that the care and treatment required
cannot be given other than by an involuntary order (s 36). Such an order may
stipulate the treatment, medication and other programs the person is to undergo
and may limit who the person may communicate with (s 36A).
A restriction order may be made in conjunction with a community care
order, requiring the person to live in a community care facility or another place
(s 36B).
A psychiatric treatment order or a community care order has effect for a period
of 6 months or a shorter period, if so specified. A restriction order has effect for
3 months or a shorter period, if so specified.
The tribunal has the power, on application or on its own initiative, to review a
mental health order. In doing so, the tribunal may vary or revoke an order, make an
additional mental health order, or order a further assessment of the person (s 36L).
Emergency admissions
In respect of emergency admissions, section 37(2) provides that a medical prac-
titioner or an authorised mental health officer may take a person to an approved
health facility for admission if either of those persons has reasonable grounds for
believing that:
a) a person is mentally dysfunctional or mentally ill and—
i) as a consequence, requires immediate treatment or care; or
ii) in the opinion of the doctor or mental health officer, the person’s
condition will deteriorate within 3 days to such an extent that the
person would require immediate treatment or care;
b) the person has refused to receive that treatment or care; and
c) detention is necessary for the person’s own health or safety, social or
financial wellbeing, or for the protection of members of the public; and
d) adequate treatment or care cannot be provided in a less restrictive
environment;
[in which case] the doctor or mental health officer may apprehend the
person and take him or her to an approved health facility.
An authorised mental health officer for the purposes of the Act is a person
appointed as such by the minister and is either a nurse, nurse practitioner, psycholo-
gist, occupational therapist or social worker (s 119).
Section 37(1) provides that a police officer may apprehend and take a person to
an approved health facility and in doing so may use such force and assistance as he
324
or she considers necessary where the police officer has reasonable grounds for believ-
ing that a person is mentally dysfunctional or mentally ill and has attempted or is
likely to attempt:
a) to commit suicide; or
b) to inflict serious harm on himself or herself or another person.
Where a person is taken to an approved health facility the person in charge is

able to detain that person. Under the provisions of section 38, while a person is so
detained, the person in charge:
a) may keep the person in such custody as the person in charge thinks appro-
priate; and
b) may subject the person to such confinement as is necessary and reasonable—
i) to prevent the person from causing harm to himself or herself or to
another person; or
ii) to ensure that the person remains in custody; and
c) may subject the person to such restraint (other than confinement) as is
necessary and reasonable—
i) to prevent the person from causing harm to himself or herself or to
another person; or
ii) to ensure that the person remains in custody. [emphasis added]
ACAT must, on application, review a decision to detain a person within

2 working days after the application is made (s 37).
Any police officer, medical practitioner or mental health officer who takes a
person to an approved health facility for detention is required to provide a statement
setting out the details of the action taken and reasons for taking it and file the
statement with the person’s clinical records (s 39).
Continued detention following emergency admission

A person who is detained by way of an emergency admission must be examined
by a medical practitioner within 4 hours of admission to an approved health facility
(s 40). Where the medical practitioner believes that further detention is necessary
he or she may authorise involuntary detention and care for a period not exceeding
3 days (s 41(1)). Section 42 requires that within 12 hours of admission the office
of the Public Advocate and the tribunal are to be notified. If a further period of
involuntary detention is required beyond the initial 3 days, the tribunal must extend
that period of detention and can only do so in the first instance for a further 7 days
(s 41(2)).
Following the initial period of involuntary detention after an emergency admis-
sion, the tribunal is required to have the person assessed prior to the holding of an
inquiry and the making of any mental health order.
The Act is concerned to ensure that any person who is admitted to a mental
health facility for the purposes of treatment and pursuant to a mental health order
is to have access to his or her lawyer and to the Public Advocate at any time. The
person in charge of a mental health facility is required to provide whatever assistance
325
is necessary to ensure access by the lawyer or Public Advocate to the person who is
being detained following assessment orders being made (s 20).
The obligations of the tribunal

In making such orders as those detailed above, the tribunal is required to have
regard to one of the overriding objectives of the Act — for persons in need of care
to be treated within a community environment. The Act gives considerable empha-
sis to this objective, in particular in section 8, the relevant part of which states:
In providing services and facilities for mentally dysfunctional or mentally ill
persons, the Territory shall have regard to the following objectives:
a) to establish, develop, promote, assist and encourage services and facilities—
…
vii) that support mentally dysfunctional or mentally ill persons in the
community and coordinate with other community services …
In addition, in detailing those matters which the tribunal is required to take into
account in making a mental health order, section 26(i) states that the tribunal shall
take into account:
i) that, as far as possible, the person should live in the general
community and join in community activities …
Obviously, the power of the tribunal to make a community care order facilitates
such an objective.
Electroconvulsive therapy (ECT) and psychiatric surgery

Part 7 of the Act deals with what is referred to as electroconvulsive therapy (ECT)
and psychiatric surgery. Those terms are defined as follows:
• ‘electroconvulsive therapy’ means a procedure for the induction of a
epileptiform convulsion in a person (s 55);
• ‘psychiatric surgery’ means surgery on the brain of a person other than
neurosurgery (dictionary to the Act).
Both definitions are referred to by the general terminology of ‘procedure’ for the
purposes of this part of the Act.
Section 54(1) details the conditions which have to be fulfilled for the purposes
of this part of the Act where a person is required to give ‘informed consent’ to a
procedure. Those conditions are as follows:
a) the person has been given a clear explanation of the procedure that con-
tains sufficient information to enable the person to make a balanced
judgment about whether or not to consent to the procedure; and
b) the person has been given an adequate description (without exaggeration
or concealment) of the benefits, discomfort and risks involved in the
procedure; and
c) the person has been advised of all alternative treatments reasonably
available that may be of benefit to the person; and
326
d) the person has been given an opportunity to ask any questions about the
procedure, those questions have been answered and the person appears to
have understood the answers; and
e) a full disclosure has been made to the person of any financial relationship
between the person seeking to obtain the consent, the doctor who is
proposing to conduct the procedure or both (as the case may be) and the
psychiatric institution at which it is proposed to conduct the procedure;
and
f ) the person has been given, has read and appears to have understood a
notice stating that—
i) the person has the right to obtain independent legal and medical
advice and any other independent advice or assistance before giving
informed consent; and
ii) the person is free to refuse or withdraw consent and to have the
procedure discontinued at any time; and
g) the person has been given an information statement. [emphasis added]
Electroconvulsive therapy
The administration of ECT with consent (s 55A):
• must be administered by a medical practitioner;
• informed consent must be given and not have been withdrawn;
• must not be administered on more than 10 occasions since the informed
consent was given.
Administration of ECT to a person without consent (s 55B)

An offence is committed if a doctor administers ECT without the informed
consent of the person. However, the tribunal may make an ECT order as part of a
psychiatric treatment order with the person’s informed consent or on an involuntary
basis (s 55G). The latter situation occurs where the tribunal is satisfied that the
person is, by reason of mental illness, incapable of weighing for himself or herself
the considerations involved in making a decision whether or not to consent to the
administration of convulsive therapy and the tribunal is satisfied that:
• the administration of the therapy is likely to result in substantial benefit to the
person; and
• it is the most appropriate form of treatment reasonably available; and
• all other forms of treatment have been tried and have not been successful.
Records must be kept of all ECT treatments administered (s 57) and must be
kept for 5 years (s 58).
Psychiatric surgery
Application must be made in writing by a medical practitioner to the Chief
Psychiatrist of the Australian Capital Territory seeking approval to undertake psy-
chiatric surgery (s 61). On receipt of that application the Chief Psychiatrist is
327
required (s 62) to submit the application to a committee, appointed by the Minister

of Health, for their consideration. The committee referred to in section 62 is set up
under the provisions of section 67 of the Act and consists of:
• a psychiatrist;
• a neurosurgeon;
• a legal practitioner;
• a clinical psychologist; and
• a social worker.
In considering the application for psychiatric surgery, the committee, in recom-
mending that the Chief Psychiatrist should approve the psychiatric surgery proposed
in the application, must be satisfied (s 62(3)) that:
• there are reasonable grounds for believing that the performance of the surgery
will result in substantial benefit to the person on whom it is proposed to be
performed; and
• all alternative forms of treatment reasonably available have failed or are likely
to fail to benefit the person; and
• the recommendation is supported by the psychiatrist and the neurosurgeon on
the committee.
In addition to the above, a medical practitioner may make application to the
Supreme Court of the Australian Capital Territory seeking its consent to the per-
formance of psychiatric surgery on a person (s 65).
A person who has given informed consent to the performance of psychiatric
surgery or who is the subject of a Supreme Court Order in respect of such a pro-
cedure may withdraw that consent at any time orally or in writing (s 66).
PATIENT RIGHTS, REVIEW OF CARE AND APPEAL MECHANISMS

UNDER THE ACT
Sections 7 and 8 set out in some detail the objectives both of the Act and of the
Australian Capital Territory in the provision of mental health services. In particular,
section 7 states that the objectives of the Act are:
a) to provide treatment, care, rehabilitation and protection for mentally
dysfunctional or mentally ill persons in a manner that is least restrictive
of their human rights;
b) to provide for mentally dysfunctional or mentally ill persons to receive
treatment, care, rehabilitation and protection voluntarily and, in certain
circumstances, involuntarily;
c) to protect the dignity and self-respect of mentally dysfunctional or
mentally ill persons;
d) to ensure that mentally dysfunctional or mentally ill persons have the
right to receive treatment, care, rehabilitation and protection in an
environment that is the least restrictive and intrusive, having regard to
their needs and the need to protect other persons from physical and
emotional harm;
328
e) to facilitate access by mentally dysfunctional or mentally ill persons to

services and facilities appropriate to the provision of treatment, care,
rehabilitation and protection.
Sections 49 to 53 of the Act detail the rights of mentally dysfunctional and
mentally ill persons in the provision of care and treatment. For example, section 50
requires that on admission to a mental health or community care facility a person
is entitled, and is required to receive, oral advice as to his or her rights under the
Act and a copy of a statement which contains:
• a prescribed statement setting out the rights and entitlements of persons under
the Act, including the right to obtain legal advice and seek a second opinion
from an appropriate mental health professional; and
• any other information relating to the treatment and care of the person that the
minister considers relevant.
Section 50 also requires that such information should be in a language that the
person is familiar with and if it appears that the person is unable to understand the
written information, every effort is to be made to translate that into a language that
they do understand. Further, the Public Advocate’s office is to be informed of dif-
ficulties experienced by the person in understanding the information.
Section 51 requires that the person who is being detained in a mental health or
community care facility has access to a wide range of documentary material specified
in the section as well as the names, addresses and telephone numbers of the various
statutory authorities available to a person who may be seeking assistance in relation
to their legal rights under the Act.
As referred to earlier, the office of the Public Advocate is required under the Act
to be notified within 12 hours of a person’s detention in an approved mental health
or community care facility. The Public Advocate as well as the person’s legal represen-
tative is to be given free and unfettered access to a person detained in a mental
health or community care facility pursuant to an assessment order in the territory
(s 22C).
APPEAL RIGHTS
Section 141 of the Act provides for a right of appeal from an order made by the
Mental Health Tribunal to the Supreme Court of the Australian Capital Territory.
Appeals may be brought by:
• somebody in relation to whom the decision was made;
• a person who appeared or who was entitled to appear before ACAT in the
proceedings under appeal;
• the Discrimination Commissioner;
• anyone else with leave of the Supreme Court.
OFFICIAL VISITORS
Section 121 provides for the appointment of ‘official visitors’. The functions and
duties of official visitors are set out in section 122 of the Act, which requires official
visitors to visit and inspect mental health facilities and inquire into:
329
• the adequacy of services for the assessment and treatment of persons with
mental dysfunction or a mental illness; and
• the appropriateness and standard of facilities for the recreation, occupation,
education, training and rehabilitation of persons receiving treatment or care
for mental dysfunction or a mental illness; and
• the extent to which people receiving treatment or care for mental dysfunction
or a mental illness are being provided the best possible treatment or care
appropriate to their needs in the least possible restrictive environment and least
possible intrusive manner consistent with the effective giving of that treatment
or care; and
• any contravention of the Act; and
• any other matter that an official visitor considers appropriate having regard to
the objectives in sections 7 and 8; and
• any complaint made to an official visitor by a person receiving treatment or
care for mental dysfunction or a mental illness.
In exercising their powers and functions official visitors may visit any mental
health facility with or without notice and must do so at least once every 3 months.
When visiting such a facility, an official visitor may inspect any part, see any person
receiving care, make any inquiries about persons in care and inspect documents or
records. It is an offence, without reasonable excuse, to refuse to assist or to obstruct
an official visitor exercising his or her powers under the Act (s 122A).
An official visitor is required to provide a report to the minister and the Public
Advocate (s 122B).
Inspectors appointed in relation to private mental health facilities
The Act makes provision for the appointment of persons known as ‘inspectors’
in relation to the control and licensing of private mental health facilities under the
Act. Section 132 provides that the Minister of Health may appoint such inspectors
as are considered necessary. Section 134(1) provides that an inspector may, at any
hour of the day, enter any licensed premises and:
a) inspect the premises and any equipment used at the premises in connection
with the treatment, care, rehabilitation or accommodation of patients or
residents; and
b) inspect any books, documents or other records that are in possession of the
occupier of the premises, or to which the occupier has access, relating to the
conduct of the psychiatric institution at those premises; and
c) require the occupier of the premises to furnish the inspector with any
information, books, documents or other records that are in the possession of
the occupier, or to which the occupier has access, relating to the conduct of
the psychiatric institution at those premises. [emphasis added]
Any person who, without reasonable cause, obstructs or hinders an inspector in

the exercise of his or her powers under section 134 is liable to a penalty under the
Act (s 135).
330
New South Wales: Mental Health Act 2007

DEFINITIONS
Most legislation will, as a matter of course, have a section of relevant definitions
at the commencement of the statute or as a dictionary at the end of it, in the
form of a schedule. In the New South Wales Act relevant definitions are set out in
section 4.
Probably the most important consideration in mental health legislation is knowing
how mental illness is defined. This understanding is necessary to ensure that people
are not wrongly detained and/or treated under the provisions of the Act and their
civil liberties overruled. The New South Wales definitions relevant to this issue are:
• mental illness;
• mentally disordered person;
• mentally ill person;
• certain words or conduct which may not indicate mental illness or disorder.
The New South Wales Act is somewhat unusual in that it distinguishes between
mental illness and a person who is mentally ill; a person may have a mental illness
but not necessarily be mentally ill — as the definition makes clear. Also, the Act
makes provision for a person who is mentally disordered as distinct from mentally
ill. Such a distinction is important to understand as the detention provisions are
quite different.
As well, an overriding consideration in determining the need of ‘care, treatment
or control’ for a mentally ill person or a mentally disordered person is whether such
a person, as part of that ‘care, treatment or control’, requires admission and deten-
tion. The emphasis in the Act is to use admission and detention only as a last resort
rather than the first principle of care. Section 12, which deals with the issue of
involuntary admission to hospitals, states that a person must not be admitted invol-
untarily to, or detained in or continue to be detained in, a mental health facility
unless the authorised medical officer believes the person is mentally ill or mentally
disordered and that no other care of a less restrictive kind that is consistent with
safe and effective care is appropriate and reasonably available to the person.
It follows, therefore, that a mentally ill or mentally disordered person will only
be detained in a mental health facility if it is considered that ‘no other care of a less
restrictive kind is appropriate and reasonably available to the person’.
Mental illness
This definition, found in section 4 of the Act, reads as follows:
mental illness means a condition which seriously impairs, either
temporarily or permanently, the mental functioning of a person and is
characterised by the presence in the person of any one or more of the
following symptoms:
a) delusions,
b) hallucinations,
c) serious disorder of thought form,
331
d) a severe disturbance of mood,

e) sustained or repeated irrational behaviour indicating the presence of
any one or more of the symptoms referred to in paragraphs (a)–(d).
It is important to note that the definition does not include any reference
to dementia or developmental disability. The intention is that such conditions
are not recognised as a mental illness for the purposes of the New South Wales
Act, unless they are accompanied by any of the above symptoms. If not, such
people are provided for under specific guardianship laws and, in New South
Wales, the relevant legislation is the Guardianship Act 1987. Nevertheless, the
latter legislation and the Mental Health Act are intended to be complementary
and a guardianship order can coexist with an order under the Mental Health
Act. However, the Mental Health Act takes precedence where there is an
inconsistency.1
Mentally ill person

Section 14 of the Act defines such a person as follows:
1) A person is a mentally ill person if the person is suffering from mental
illness and, owing to that illness, there are reasonable grounds for believing
that care, treatment or control of the person is necessary:
a) for the person’s own protection from serious harm, or
b) for the protection of others from serious harm.
2) In considering whether a person is a mentally ill person, the continuing
condition of the person, including any likely deterioration in the person’s
condition and the likely effects of any such deterioration, are to be taken
into account.
Remember, the important thing to note here is that the New South Wales Act
distinguishes between a person who has a mental illness and a person who is men-
tally ill. This means that a person who has a mental illness cannot be automatically
classified as being mentally ill. The definition of mental illness has to be read in
conjunction with the definition of a mentally ill person. Accordingly, for a person
to be deemed to be a mentally ill person in New South Wales the following criteria
have to be addressed:
a) the person must be suffering from a mental illness as per the definition in
section 4 of the Act; and
b) there are reasonable grounds for believing that care, treatment and control
of the person is necessary for the protection of the person or others from
serious harm; and
c) the continuing condition of the person including any likely
deterioration and the likely effects of such deterioration is to be taken into
account as provided in section 14 of the definition of ‘mentally ill
person’; and
d) there is no less restrictive environment in which appropriate care,
treatment and control can be safely and effectively provided.2 [emphasis
added]
332
Mentally disordered person

In addition to defining mental illness and mentally ill persons, the New South
Wales Act also provides for a category of person described as ‘mentally disordered’.
Section 15 defines this category as follows:
A person (whether or not the person is suffering from mental illness) is a
mentally disordered person if the person’s behaviour for the time being is so
irrational as to justify a conclusion on reasonable grounds that temporary
care, treatment or control of the person is necessary:
a) for the person’s own protection from serious physical harm, or
b) for the protection of others from serious physical harm.
Note the emphasis that is given in this definition to irrational behaviour ‘for the
time being’ such that ‘temporary’ care, treatment or control is necessary.
This category is intended to deal with those persons who are not mentally ill as
defined in the Act (though they may have a mental illness) but whose behaviour is
temporarily irrational and a danger to themselves or others. The best example of a
mentally disordered person would be a person suffering a severe personal traumatic
crisis in a social or domestic situation where they are unable to control their emo-
tions and may become suicidal. To qualify as a mentally disordered person under
the Act the following criteria have to be considered:
a) the person must be displaying irrational behaviour (not necessarily a mental
illness); and
b) as a result of that behaviour there is a significant risk of serious physical
harm to the person or others; and
c) temporary care, treatment or control is considered necessary; and
d) there is no less restrictive environment in which appropriate care, treatment
and control can be safely and effectively provided.3 [emphasis added]
Note that the Act does not attempt to define ‘irrational behaviour’ — so it would
be a matter of determining whether a person’s behaviour was irrational or otherwise
having regard to the ordinary use and understanding of the word and the context
of the person’s behaviour on any particular occasion.
The New South Wales Act also identifies certain words or conduct that, by them-
selves, may not indicate mental illness or disorder. Section 16 outlines those provi-
sions as follows:
1) A person is not a mentally ill person or a mentally disordered person
merely because of any one or more of the following:
a) the person expresses or refuses or fails to express or has expressed or
refused or failed to express a particular political opinion or belief,
b) the person expresses or refuses or fails to express or has expressed or
refused or failed to express a particular religious opinion or belief,
c) the person expresses or refuses or fails to express or has expressed or
refused or failed to express a particular philosophy,
d) the person expresses or refuses or fails to express or has expressed or
refused or failed to express a particular sexual preference or sexual
orientation,
333
e) the person engages in or refuses or fails to engage in, or has engaged

in or refused or failed to engage in, a particular political activity,
f ) the person engages in or refuses or fails to engage in, or has engaged
in or refused or failed to engage in, a particular religious activity,
g) the person engages in or has engaged in a particular sexual activity or
sexual promiscuity,
h) the person engages in or has engaged in immoral conduct,
i) the person engages in or has engaged in illegal conduct,
j) the person has developmental disability of mind,
k) the person takes or has taken alcohol or any other drug,
l) the person engages in or has engaged in anti-social behaviour,
m) the person has a particular economic or social status or is a member
of a particular culture or racial group.
2) Nothing in this Part prevents, in relation to a person who takes or has
taken alcohol or any other drug, the serious or permanent physiological,
biochemical or psychological effects of drug taking from being regarded as
an indication that a person is suffering from mental illness or other
condition of disability of mind.
The intention of section 16 is to ensure that a person whose beliefs or behaviour

might be considered socially unacceptable or generally not tolerated is not a men-
tally ill person and therefore cannot be involuntarily detained in a hospital. It should
be noted, however, that section 16(2) does provide that a person who suffers a
psychiatric illness as a result of long-term drug or alcohol intake can be deemed to
have a mental illness within the meaning of the Act.
ADMISSION TO AND DETENTION IN A MENTAL HEALTH FACILITY UNDER THE NEW
SOUTH WALES ACT
The New South Wales Act does not refer to the term ‘psychiatric hospital’ but uses
the terminology of ‘mental health facility’ or ‘declared mental health facility’.
Declared mental health facility
A declared mental health facility means premises subject to an order in force
under section 109 of the Act. Reference in the Act to a mental health facility
includes a declared mental health facility or a private mental health facility.
In essence, declared mental health facilities are those premises that have been
gazetted by order of, or granted a licence by, the Director General of Health to admit,
care and treat persons who come under the provisions of the Mental Health Act.
Admission to a declared mental health facility
Persons admitted to a mental health facility in New South Wales fall under one
of two categories, namely, voluntary or involuntary.
ADMISSION OF A PERSON AS A VOLUNTARY PATIENT
Voluntary patients are those patients who are admitted to a mental health facility
at their own request and may leave when they want to or when they are well enough
334
to be discharged. The Act makes provision for the process to be followed for admis-
sion and discharge of a person as a voluntary patient (ss 5–8 inclusive). The particu-
lar provision for a person over 16 years to admit himself or herself as an involuntary
patient is relatively straightforward, subject to the provision that an authorised
medical officer needs to be satisfied that the person is likely to benefit from care
and treatment in a mental health facility (s 5). Care has to be taken, however, in
the admission of persons under 16 years of age and those persons who are under
guardianship within the Guardianship Act 1987.
A person under guardianship within the meaning of the Guardianship Act may
be admitted to a mental health facility as a voluntary patient following a request
made by the person’s guardian to the authorised medical officer (s 7).
If a person under the age of 16 years is admitted to a mental health facility as a
voluntary patient, the authorised medical officer must, as soon as practicable after
admission, do all that is reasonably practicable to notify the person’s parents of the
person’s admission (s 6).
If a parent of a person 14 or 15 years of age who has been admitted to a mental
health facility as a voluntary patient objects to the person receiving care or treatment
at the mental health facility, the authorised medical officer must discharge the
person unless he or she elects to continue as a voluntary patient (s 6).
A person under the age of 14 years must not be admitted to a mental health
facility as a voluntary patient if a parent of the person has notified the authorised
medical officer that he or she objects to the person being admitted (s 6).
If a parent of a person under the age of 14 years who has been admitted to a
mental health facility as a voluntary patient notifies the authorised medical officer
that he or she objects to the person receiving care or treatment at the mental health
facility, the authorised medical officer must discharge the person (s 6).
A person under guardianship must not be admitted to a mental health facility as
a voluntary patient if, at or before the time at which the person seeks to be admit-
ted, the guardian of the person has notified the authorised medical officer that he
or she objects to the person being admitted (s 7).
If the guardian of a person who has been admitted to a mental health facility as
a voluntary patient notifies the authorised medical officer that he or she objects to
the person receiving care or treatment at the mental health facility, the authorised
medical officer must discharge the person (s 7).
A person who requests and is refused admission as a voluntary patient or who
believes they have been inappropriately discharged may seek a review of that deci-
sion in accordance with the provisions of section 11. This is not a formal appeal
mechanism but simply a provision requiring the medical superintendent to review
the decision of another medical officer.
Review of care and discharge of voluntary patients

A voluntary patient may discharge themselves at any time. As well, an authorised
medical officer may do so if they decide that the patient is unlikely to benefit
from any further inpatient care and treatment. Where the patient is under
guardianship, notice of the discharge must be given to the person’s guardian
(ss 7 and 8).
335
If a voluntary patient should remain in a mental health facility for a continuous

period in excess of 12 months, their case must be brought to the attention of the
Mental Health Review Tribunal by the medical superintendent and the tribunal
must review the case (see the section below titled ‘What is the Mental Health Review
Tribunal?’). In undertaking that review and as considered appropriate, the tribunal
may order the discharge of the patient but may defer the discharge for a period not
exceeding 14 days, or make no order at all, thereby continuing the patient’s care
and treatment as a voluntary patient (s 8).
ADMISSION OF INVOLUNTARY PATIENTS

An involuntary patient is a person who is admitted and detained in a mental health
facility for the purposes of receiving care, treatment and control either against the
person’s wishes or on the request of a specified other person or a court order. A
person may be admitted and detained as an involuntary patient either on the
grounds that the person is a mentally ill person or a mentally disordered person as
defined in the Act.
Regardless of whether the person is mentally ill or mentally disordered, admission
of an involuntary patient to a hospital for care and treatment can be done in one
of the following ways:
• on the certificate of a medical practitioner or accredited person (s 19);
• on the information of an ambulance officer (s 20);
• after apprehension by police (s 22);
• following an order for medical examination (s 23);
• on order of the court (s 24);
• on transfer from another health facility (s 25);
• on request of the primary carer, relative or friend (s 26).
On the certificate of a medical practitioner or accredited person (s 19)

A person may be taken to and detained in a declared mental health facility on
the certificate of a medical practitioner or an accredited person who has examined
the person and formed the opinion that the person is either mentally ill or mentally
disordered. The certificate is to be in the form as set out in Schedule 1 of the Act.
The certificate is valid for 5 days for a mentally ill person and one day for a mentally
disordered person.
An accredited person is defined in section 136 of the Act as any person appointed
by the Director General as such. The phrase ‘accredited person’ has been described
as ‘a suitably qualified and experienced mental health practitioner, such as a nurse,
psychologist or social worker, who is specifically empowered to write Schedule 1
certificates, usually in areas where there are insufficient doctors’.4
On the information of an ambulance officer (s 20)

An ambulance officer may take a person to a defined mental health facility if the
officer believes on reasonable grounds that the person appears mentally ill or men-
tally disturbed and that it would be beneficial for the person to do so. In doing so,
336
an ambulance officer may request police assistance. Where such a request is made,
a police officer may enter premises and apprehend the person without a warrant
(s 21). As well, in transporting a person to or from a mental health facility, a police
officer may use reasonable force and may restrain the person in any way that is
considered reasonably necessary (s 81).
After apprehension by police (s 22)
The police may apprehend and take a person to a declared mental health facility
if they have found the person in a public place and are of the opinion that the
person is mentally ill or mentally disturbed and the police believe the person has
recently attempted to kill himself or herself or will try to do so, or will attempt to
cause serious bodily harm to himself or herself, or is committing or has recently
committed an offence and the police believe it would benefit the welfare of the
person to be dealt with under mental health law rather than criminal law.
Following an order for medical examination (s 23)
If a magistrate or registrar of the court is satisfied, by evidence on oath, that a
person may be a mentally ill person or a mentally disordered person, and that
because of physical inaccessibility the person could not be personally examined, the
magistrate or registrar may, by order, authorise a medical practitioner or accredited
person as well as any other persons (including a member of the police force) who
may be required to assist the medical practitioner or accredited person to visit and
to personally examine or observe the person. Those persons authorised to visit or
observe may enter the premises, if need be by force, to enable the examination or
observation to be carried out.
In many cases, particularly in country areas, a person may be admitted to the
local hospital in the first instance for immediate assessment, care and control. The
local medical practitioner will then complete a certificate in accordance with Sched-
ule 1 of the Act that, in his or her opinion, the person is mentally ill or mentally
disordered and should be detained. It is then necessary for the person to be trans-
ferred to a declared mental health facility for assessment and, if considered necessary
in accordance with the Act, care and detention for a specified period of time.
On order of the court (s 24)
A person may be taken to and detained in a declared mental health facility in
accordance with an order made under section 33 of the Mental Health (Forensic
Provisions) Act 1990. Where the magistrate is of the opinion that the person appear-
ing before him or her in relation to a criminal matter is a mentally ill person, he
or she may order the person to be taken to a declared mental health facility for
assessment.
On transfer from another health facility (s 25)
A person may be transferred from a hospital or health facility to a declared mental
health facility if a medical officer of the hospital or health facility considers the
person to be mentally ill or mentally disordered and should be detained. In those
circumstances the person will be deemed to have been detained pursuant to the
provisions of section 19 of the Act.
337
On request of the primary carer, relative or friend (s 26)

A person may be detained in a declared mental health facility on a written request
made by the primary carer, relative or friend of the person to an authorised medical
officer. The medical officer must not detain any such person unless he or she is satis-
fied that, because of the distances required to be travelled in order to have the person
examined by a medical practitioner and the urgency of the circumstances, it is not
reasonably practicable to have the person detained by a mental health certificate.
The appointment, and role, of the person nominated as a primary carer under
the Act is elaborated upon later in this chapter.
Examination requirements at the declared mental health facility (s 27)

Once a person has been brought to the declared mental health facility for admis-
sion in accordance with one or other of the above procedures, specific provisions
in the Act set out the steps which must then be followed. The provisions require a
number of examinations to be undertaken. A medical practitioner on whose certifi-
cate or request a person has been admitted to a mental health facility may not
conduct any of these examinations.
The first examination must be conducted by an authorised medical officer and
must occur as soon as practicable and not more than 12 hours after the person’s
arrival. If the person is found to be mentally ill or mentally disordered, they must
be seen by a second medical officer. If not found to be mentally ill or mentally
disordered, the person must be discharged (s 27(a)).
If a second examination is required, it must be conducted ‘as soon as practicable’
by a psychiatrist (unless the first examination was conducted by a psychiatrist). If
one of the examining medical officers concludes that the person is mentally ill the
person must be reviewed by an inquiry conducted by the Mental Health Review
Tribunal (the tribunal). If both medical officers find the person is mentally disor-
dered the person may be detained for up to 3 days (not including weekends or
public holidays). Where the second medical officer finds the person is neither men-
tally ill nor mentally disordered, the person must be examined for a third time
(s 27(b)).
The third examination must be conducted as soon as practicable by a psychiatrist.
The provision ‘as soon as practicable’ may depend on the location and availability
of another psychiatrist. Ultimately, the finding made by the third medical officer
will determine whether the person is detained as a mentally ill or mentally disor-
dered person or is discharged (s 27(c)). Before the third examination and if the
authorised medical officer considers it clinically appropriate, the person may be
admitted as a voluntary patient or discharged on the basis that ‘care of a less restric-
tive kind’ is available. On that latter point, it is important to always bear in mind
the provisions of section 12 already referred to — that is, that a person must not
be admitted and detained in hospital unless the authorised medical officer is of the
opinion that the person is mentally ill or mentally disordered and no other care of
a less restrictive kind is appropriate and reasonably available to the person.
If a person is found to be mentally ill after initial examinations have occurred
and that finding is to be the subject of review by the tribunal, minimum medication
is to be prescribed for the person consistent with proper care to ensure that the
338
person can communicate adequately with anyone who may be engaged to represent
the person at any subsequent mental health inquiry before the tribunal (s 29).
Once a person is detained either as a mentally ill or a mentally disordered person,
they are to be given a written statement of their legal rights as well as an oral expla-
nation of them. Obviously, if the person does not understand English, steps must
be taken to have those rights given to the person in a language he or she understands
(s 74).
If a person brought in by the police is found not to be mentally ill or mentally
disordered the mental health facility may detain the person for 1 hour to enable
the police to attend and take the person into their custody. If the police do not
wish to take custody of the person the mental health facility may discharge the
person into the care of a relative or friend or admit the person as a voluntary patient
(s 32).
Where a person has been brought to a mental health facility for assessment (gen-
erally by the police or some other relevant person) pursuant to an order under
section 33(1)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW) and is
found not to be mentally ill or mentally disordered, the person is to be released
into the custody of the police or the relevant person who brought the person to the
mental health facility as soon as practicable (s 32).
NOMINATION OF PRIMARY CARER BY A PERSON ADMITTED AS A VOLUNTARY

PATIENT, OR DETAINED AS AN INVOLUNTARY PATIENT, ‘ASSESSABLE PERSON’ OR
SUBJECT TO A COMMUNITY TREATMENT ORDER UNDER THE ACT
One of the major changes introduced into the Mental Health Act 2007 (NSW)
recognises the role and participation of the ‘primary carer’ in relation to treatment
decisions and plans made in relation to voluntary or involuntary patients, an ‘assess-
able person’ under the Act or a person subject to a community treatment order. An
‘assessable person’ is a person detained in a mental health facility where a tribunal
inquiry is to be held (s 17).
A primary carer for the purposes of the Act, as set out in section 71, can be:
• a person who has been appointed the patient’s guardian under the
Guardianship Act 1987; or
• the parent of a child; or
if the patient does not fit into the above categories:
• where a child is aged over 14 years and is not under guardianship, the person
nominated by the patient as the primary carer; or
• the patient’s spouse or partner where the relationship is close and continuing
(this includes de facto and same sex partners); or
• a close friend or relative of the patient; or
• someone who is primarily responsible for providing support and care (though
not on a wholly or substantially commercial basis) — a person in receipt of a
Carer’s Pension is not seen as providing care on a commercial basis and can
therefore be considered as a primary carer.5
339
Section 72 outlines the steps to be followed in nominating a primary carer. A

patient who does not have a guardian and is over 14 can nominate a carer at any
time. Once a person has been nominated and accepted as a primary carer, the
nomination stays in force for 12 months but may be revoked at any time. Patients
may also nominate persons who they wish to exclude from receiving information
about them or nominate information they wish their primary carer to be excluded
from receiving, except, where the patient is between 14 and 18 years, their parents
may not be excluded from receiving information about their care and treatment.
Once a patient has nominated a person to be their primary carer, the authorised
medical officer or director of community treatment must put it into effect, unless
there are reasonable grounds for them to believe that to proceed with the nomina-
tion, the patient, the carer or any other person may be at risk of serious harm or
that the patient was incapable of making the nomination.
The Act provides that an authorised medical officer must take all reasonably
practicable steps to notify the primary carer (unless otherwise excluded) of:
• within the first 24 hours of detention (unless the patient is a voluntary
patient), the patient’s detention in a mental health facility (s 75);
• a scheduled mental health inquiry (s 76);
• any unauthorised absence from a mental health facility (s 78(1)(a));
• any proposed transfer between mental health facilities (s 78(1)(b));
• the patient’s discharge or reclassification as a voluntary patient (s 78(1)(c) and
(d));
• any application to the Mental Health Review Tribunal for electroconvulsive
therapy, urgent surgical operations or special medical treatment (s 78(1)(e), (f )
and (g)).
A person nominated as a primary carer has the right to make certain requests
under the Act and to be involved in the patient’s discharge planning. As noted
earlier, a primary carer may request a person’s admission to a mental health facility
under section 26. As well, a primary carer is entitled to request information about
the type of medication being administered to the patient (s 73) and may request
that the patient be discharged into their care, provided they give an undertaking
that the patient will be properly cared for and the authorised medical officer is satis-
fied that such a step is appropriate and would not cause harm to either the patient,
the primary carer or others (s 43). If the authorised medical officer refuses the
primary carer’s request for the patient to be discharged into their care, the primary
carer may appeal to the tribunal (s 44).
A primary carer is one of the categories of persons who may apply to the tribunal
for a community treatment order under section 51 of the Act. As well, a primary
carer may advise the medical superintendent of a mental health facility that the
patient has requested a visit from an official visitor. When such a request is received,
the medical superintendent must arrange a visit within two working days (s 134).
When a patient is being discharged, his or her primary carer should be consulted
in relation to any follow-up care and treatment proposed (s 79).
340
LIMITED DETENTION OF A MENTALLY DISORDERED PERSON

Section 31 outlines the relevant detention provisions applying to a person found to
be mentally disordered, summarised as follows:
• a mentally disordered person must not be detained for a continuous period in
excess of 3 days (not including weekends and public holidays);
• the person must be examined at least once every 24 hours by the authorised
medical officer;
• the person must not be detained if, following such examination, the authorised
medical officer believes the person is not mentally disordered or mentally ill or
that care of a less restrictive kind is appropriate and available;
• a person must not be admitted or detained as a mentally disordered person on
more than three occasions in any one month.
DETENTION OF A MENTALLY ILL PERSON

If a person is found to be mentally ill following admission to a mental health facil-
ity, he or she is then known as an ‘assessable person’ subject to an inquiry by the
tribunal. The purpose of the tribunal’s inquiry is to inquire into and confirm or
overrule the initial decision that the person is mentally ill and decide the subsequent
period of detention and care to be given.
Steps must be taken to bring the person before the tribunal ‘as soon as practicable’
(s 27(d)). Specific legislative provisions must be followed preparatory to bringing a
person before a tribunal inquiry. A summary of these legislative provisions follows.6
Once a person has been admitted and detained as an ‘assessable person’ the mental
health facility must notify the person’s primary carer of the tribunal inquiry (s 76).
As well, the person must be given an explanation about the proposed inquiry in a
language he or she can understand (s 74). The person must be given a clear explana-
tion of their rights as well as an explanation of the order the mental health facility
will be seeking from the tribunal inquiry. The person is entitled to have the oppor-
tunity to ask questions about the inquiry process. If need be, a competent interpreter
should be arranged and be present to assist as required. The person is entitled to
independent legal representation at the inquiry and, where appropriate, that should
also be organised. Steps should be taken to ensure the person has the opportunity
to talk with their legal representative in an appropriate place that affords them
privacy and confidentiality.
The Act requires that, where reasonably practicable, the person appears in street
clothes for the inquiry hearing (s 34) and that steps are taken to ensure the
minimum of medication, consistent with proper care, is prescribed, to ensure
the person is able to communicate adequately with their legal representative before
the inquiry hearing (s 29).
The mental health facility must make arrangements as necessary to ensure that
appropriate medical witnesses appear and all relevant medical records are made
available for the hearing (s 34).
The inquiry before the tribunal should be conducted in such a way so as to ensure
the person is afforded every possible assistance as well as independent and proper
legal representation. If the tribunal is not satisfied that due notice has been given
341
to the person and their primary carer about the inquiry or that the person has not
been informed of his or her legal rights, the tribunal can adjourn the inquiry for a
period not exceeding 14 days (s 36). The tribunal may also adjourn an inquiry for
14 days if it is considered in the best interests of the person, having regard to the
documentation before it (s 36). When that occurs, the person will continue to be
detained.
Before commencing the inquiry, the tribunal is required to ensure that the provi-
sions of the Mental Health Act required to be complied with before an inquiry is
conducted have been satisfied — the tribunal will check the person’s accompanying
documentation to ensure it has the jurisdiction to conduct the inquiry. The tribunal
must also ensure that the person appearing before them has been given a Statement
of Rights, that proper notice has been given to the person and primary carer about
the inquiry and ensure legal representation is present if required as well as an inter-
preter. Inquiries should be made into the person’s medication, taking into account
any effect that may have on the person’s ability to communicate and the tribunal
must take into account any cultural factors that may be relevant to the question of
mental illness (s 35).
After hearing from all parties represented at the inquiry, the tribunal is required
to determine, on the balance of probabilities, whether or not the person is mentally
ill; that is, the tribunal considers whether it is more likely than not that the person
is mentally ill.7
Once the tribunal comes to the decision that the person is a mentally ill person,
the following care provisions are available for the tribunal to consider (s 35):
• discharge the person into the care of their primary carer; or
• discharge the patient on a community treatment order of not more than 12
months; or
• make an involuntary patient order directing that the person be detained for a
period not exceeding three months.
Conversely, if after hearing the evidence the tribunal is not satisfied that the
person is a mentally ill person, the following options are available for the tribunal
to consider (s 35):
• discharge the person; or
• discharge the patient but defer the discharge for a period not exceeding 14
days if it is considered in the person’s best interests.
Once the tribunal has made an involuntary patient order to detain the person,
it must consider the person’s capacity to manage their financial affairs. If it is con-
sidered the person is not capable of managing their affairs, it must make an order
for financial management under section 44 of the Trustee and Guardian Act 2009
(NSW). Such an order can be revoked by the tribunal at a later time if the person
is discharged and the tribunal is satisfied the person can manage their own financial
affairs (Trustee and Guardian Act s 88).8
It is possible of course that a mentally ill person who is subject to an inquiry by
the tribunal may elect to remain in the mental health facility for care and treatment.
342
If so, he or she would be admitted as a voluntary patient, and the relevant provi-
sions of the Mental Health Act 2007 would apply.
If the tribunal decides to make an involuntary treatment order in relation to a
person who appears before it to the effect that the person be detained as an invol-
untary patient for a specified period of time not exceeding 3 months, the person
must first be advised of their right of appeal against the tribunal’s finding. In the
first instance, the person can request the authorised medical officer to discharge him
or her. If that request is refused, the person can appeal to a three-member tribunal
panel (s 44). As well, the person’s primary carer may apply to the authorised medical
officer for the person to be discharged into their care. That request may be granted
subject to the primary carer’s giving a written undertaking that the person will be
properly cared for and the medical officer’s being satisfied of the safety of the person,
the carer and others (s 43).
What is the Mental Health Review Tribunal?

The tribunal is a quasi-judicial body. Its role is to make and review orders and be
an independent review and appeal body in relation to the determination and treat-
ment of mentally ill persons both at civil and criminal law. The tribunal conducts
hearings in person or by video conference or telephone in mental health facilities
or community healthcare centres in metropolitan and regional New South Wales.
THE COMPOSITION OF THE TRIBUNAL

The composition of the tribunal members is drawn from:
• Australian lawyers;
• psychiatrists;
• persons having, in the opinion of the State Governor, other suitable
qualifications or experience, including at least one person selected from a
group of persons who are nominated by consumer organisations.
The section also provides that the members of the tribunal must include one
woman (or more) and one or more persons of ethnic background (s 141).
The tribunal generally sits as a panel of three members except when it is conduct-
ing an initial mental health inquiry when one legal member sits alone. The tribunal
may also sit as a one-person panel when handling certain routine matters such as
an uncontested variation of a community treatment order. A three-member tribunal
panel consists of a lawyer who chairs the panel, a psychiatrist and another suitably
qualified member.
The tribunal is required to sit as a panel of three members when it undertakes:
• reviews of involuntary patients;
• annual reviews of voluntary patients;
• appeals against refusal to discharge;
• applications for community treatment orders;
• applications for electroconvulsive therapy, surgical operations and special
medical treatment.
343
THE ROLE OF THE TRIBUNAL

The tribunal’s role extends across hearings in relation to mentally ill and mentally
disordered persons including those persons who commit a criminal offence where
their state of mental health at the time of committing the offence is a critical factor
in determining how they are to be dealt with by the legal system. Such persons are
known as forensic patients. All other persons who come before the tribunal are
referred to as civil patients.
The tribunal’s role in dealing with civil patients encompasses:
• conducting mental health inquiries and making Involuntary Patient Orders
authorising the continued involuntary detention of a person in a mental health
facility;
• reviewing involuntary patients in mental health facilities, usually every 3 or
6 months, and in appropriate cases every 12 months;
• reviewing voluntary patients in mental health facilities, usually every 12
months;
• hearing appeals against an authorised medical officer’s refusal to discharge an
involuntary patient;
• making, varying or revoking community treatment orders;
• approving the use of electroconvulsive therapy (ECT) for involuntary patients;
• determining if voluntary patients have consented to ECT;
• approving surgery for an involuntary patient detained in a mental health
facility;
• approving special medical treatment (sterilisation) for involuntary patients; and
• making and revoking orders under the Trustee and Guardian Act 2009 (NSW)
for a person’s financial affairs to be managed by the NSW Trustee.
As well, the tribunal reviews all forensic patients who:

• have been found not guilty by a court by reason of mental illness;
• have been found unfit to be tried by reason of mental illness; or
• have been transferred from prison to hospital because of mental illness.
THE PROCEDURE OF THE TRIBUNAL

The Mental Health Act quite specifically provides that the proceedings of the tribunal
are to be conducted ‘with as little formality and technicality, and with as much
expedition … as the proper consideration of the matters before the Tribunal permit’
(s 151). The tribunal is not bound by the rules of evidence (s 151) and may call
upon any person it considers relevant to assist in any matter to be determined
(s 154).
The Act goes to considerable lengths to ensure that the proceedings of the tribunal
are fair, open and proper in every respect. Accordingly, the Act provides as follows:
• in general, the proceedings of the tribunal are open to the public but the
tribunal may order otherwise;
344
• patients may be represented before the tribunal by a legal practitioner or by

another person, with the approval of the tribunal (s 154);
• interpreters must be provided where appropriate (s 158);
• a person having any matter before the tribunal shall be entitled to inspect and
have access to his or her medical records, unless the tribunal determines
otherwise; a representative of the person is also entitled to access the medical
records (s 156);
• the tribunal has power to issue a summons requiring the personal attendance
of a witness at the tribunal and/or the production of documents either of its
own motion or on the application of the person the subject of the inquiry or
his or her representative (s 157);
• the proceedings of the tribunal are sound-recorded and every decision of the
tribunal must be reduced to writing and signed by the chairperson (s 159)
— this is important, because the Act provides for an extensive ground of
appeal to the Supreme Court for the benefit of the person who is the subject
of the tribunal’s determination.
APPEALS FROM DECISIONS OF THE TRIBUNAL

Appeals against a determination of the tribunal made with respect to a person or
the failure or refusal of the tribunal to make an order with respect to the person
may be made to the Supreme Court of New South Wales (s 163).
Forms and types of treatment under the Act

In the main, persons who are deemed to be mentally ill or mentally disordered,
either as a voluntary or involuntary patient, will be treated with a variety of thera-
peutic medications together with counselling, rehabilitation and social support
services. Such treatment may occur in a variety of settings. The emphasis in New
South Wales is, as already mentioned, to use detention for the purposes of care,
treatment and control only as a last resort. In order to facilitate that approach,
provision has been made in the Act for a ‘community treatment order’ to be made.
The very title of such an order confirms it is designed to be implemented in a com-
munity healthcare setting and not in an institutional environment.
COMMUNITY TREATMENT ORDERS

A community treatment order (CTO) is an order made by the Mental Health
Review Tribunal that compels a person to visit a community mental health facility
or be at a specified place at certain times to receive treatment as contained in the
treatment plan that is an integral part of a CTO.
An application to the tribunal for a CTO in relation to a person may be made
by the authorised medical officer of a mental health facility in which the person is
detained or is a patient, a medical officer familiar with the clinical history of the
person, the person’s primary carer, or a director of a community mental health
facility familiar with the person’s clinical history (s 51). Before the application is
made, however, it will be necessary to liaise with the community mental health
345
facility that is going to be responsible for drawing up and implementing the treat-
ment plan that must accompany the application for the CTO.
A CTO may be made in relation to a person detained in a mental health facility
or a person living in the community and it may also be made if a person is already
subject to a current CTO (s 51).
A CTO may be made by the tribunal following a mental health inquiry where
the person is found to be mentally ill and a CTO is seen as the least restrictive
alternative consistent with safe and effective care. As well, a CTO may be made on
a review of a patient by the tribunal or following an application to the tribunal
(s 51). The maximum period for a CTO is 12 months (s 53(6)). However, section
67 of the Act provides an automatic right of appeal if a CTO is made for longer
than 6 months or no duration is specified. For that reason most CTOs will continue
to be for 6 months.
In deciding to approve a CTO the tribunal is required to consider the following
provisions of section 53:9
• Has an appropriate treatment plan been drawn up by the community mental
health facility?
• Will the person benefit from a CTO as the least restrictive alternative
consistent with safe and effective care?
• Is the community mental health facility capable of implementing the plan?
• Does the person have a prior diagnosis of a mental illness, and if so, is there a
previous history of refusing to accept appropriate treatment?
In making a CTO, a treatment plan must accompany it. A treatment plan is

usually prepared by the person’s psychiatric case manager and forms part of the
CTO application for the tribunal’s approval. A prepared treatment plan should
nominate the mental health facility that is to implement the plan as well as requir-
ing the affected person to be present at the specified times and places to receive
medication, therapy, counselling, management, rehabilitation and other services
according to the plan (s 56). As well, a treatment plan must specify the place, time
and method by which the services will be provided (s 54).
If the person who is to be the subject of a CTO is not detained in a mental health
facility at the time the application is to be made, the person must be given 14 days’
written notice of the CTO application to be made as well as a copy of the treatment
plan to accompany the application (s 52).
The tribunal may vary or revoke a CTO (s 65). Such an application would nor-
mally be made if there was a change of circumstances affecting the person, for
example, a change in the person’s medication as part of the treatment plan. An
application to vary or revoke can be made by any of the persons or parties who are
able to make an application for a CTO in the first place (as mentioned earlier in
this chapter).
If the person who is the subject of a CTO fails or refuses to comply with its
conditions, steps can be taken to initiate breach proceedings (s 58). In the first
instance the director of the mental health facility must assess the situation and
consider if all reasonable steps have been taken to implement the CTO as well as
346
the person’s overall mental health. If considered appropriate, a verbal warning may
be given to the person that a continued failure by them to comply with the CTO
may result in their being compulsorily taken to a mental health facility and treated
against their will. If there is still no cooperation from the person, a written breach
notice may be issued requiring the person to attend the mental health facility for
treatment. If need be, police assistance may be requested to apprehend the person
and bring them to the relevant mental health facility (s 59). If a person is admitted
to a mental health facility as a result of breaching a CTO, an authorised medical
officer must review the person’s mental health condition within 12 hours of arrival
and may detain the person at the facility following the review and give them treat-
ment (s 61).
The person who is the subject of a CTO may appeal. Where the appeal is
heard will depend on who made the order in the first instance. If a CTO was made
by a single-member panel of the tribunal, the appeal would lie to a three-member
panel. However, if a three-member panel was the body that made the CTO, the
appeal would lie to the Supreme Court of New South Wales. Appeals to
the Supreme Court can be on the basis of any question of law or fact arising from
the order as well as any CTO made in excess of 6 months or for an indeterminate
period (s 67).
ELECTROCONVULSIVE THERAPY (ECT)

The Mental Health Act 2007 (NSW) makes provision for ECT and the conditions
which are required to apply to any person in New South Wales for whom ECT is
proposed.
Who can administer ECT?

Two medical practitioners must be present — one experienced in administering
ECT, the other experienced in administering anaesthesia (s 181).
The procedure for giving ECT to a voluntary patient

ECT may be given to a voluntary patient once their informed and freely given
consent has been obtained (s 91). The voluntary patient must have been given the
following information, as set out in section 91:
• a fair explanation of the procedure;
• a full description of the possible discomforts and risks, including the possible
loss of memory;
• information about alternative treatments;
• a full description of the expected benefits;
• notice that at any time consent can be withdrawn and the procedure
discontinued;
• a full disclosure of any financial relationship between those proposing the
treatment and those administering the treatment;
• notice of the right to obtain legal and medical advice and to be represented
before giving consent;
347
• any question relating to the procedure being answered in terms they appear to
have understood;
• the person must not be on medication that significantly impairs their ability to
give consent (s 92).
Two medical practitioners (one of whom must be a psychiatrist) must certify, in

writing, after considering the person’s clinical condition, history of treatment and
any appropriate alternative treatments, that ECT is a reasonable and proper treat-
ment for the person to have in all the circumstances and that it is necessary or
desirable for the safety or welfare of the person (s 93).
It is important to remember that voluntary patients cannot be given ECT
without their written informed consent. If the voluntary patient lacks the capacity
to consent, no other person may consent on their behalf; for example, parents
cannot consent on behalf of a child who lacks the capacity to consent, or refuses
to give their informed consent. Where an authorised medical officer is unsure
whether a voluntary patient is capable of giving informed consent, an application
must be made to the tribunal and notice given to the patient’s primary carer of that
application. When dealing with the matter the tribunal’s role is to determine
whether the patient is capable of giving informed consent and whether or not they
have actually given their consent as required (s 96(1)). If the tribunal determines
the patient lacks capacity or has refused treatment, ECT cannot be administered
whilsoever the patient remains a voluntary patient.10
The procedure for giving ECT to an involuntary patient and persons detained in a
mental health facility
Where two medical practitioners (one of whom is a psychiatrist) certify that ECT
is a reasonable and proper treatment in all the circumstances and is necessary or
desirable for the safety or welfare of the patient (s 94), an authorised medical officer
must apply to the tribunal for permission to administer ECT to an involuntary
patient or any other person detained in a mental health facility. Such an application
may be made where the person has been detained as an assessable person, the person
is subject to an adjournment made at a mental health inquiry, or the person is
subject to an involuntary patient order made by the tribunal.11
The tribunal’s inquiry

When an application is made, the tribunal must hold an inquiry as soon as
practicable to determine whether or not the application for ECT should be granted
(s 95). As always, the tribunal must, at the outset, ensure that the patient’s primary
carer has been given notice of the application. The patient must be informed about
the purpose of the application and what the possible outcome of the inquiry could
be. As well as the medical evidence given to the tribunal in support of the applica-
tion, the tribunal must take into account the views expressed by the patient, and
the effect that any medication administered to the patient may have had on the
patient’s ability to communicate with the tribunal.
If the tribunal is satisfied that the patient is capable of giving informed consent
and has given that consent or there is no informed consent but the treatment is
348
necessary or desirable for the safety or welfare of the patient, ECT can be admin-
istered (s 96(3)).
Maximum number of treatments and duration of an ECT order

The maximum number of ECT treatments the tribunal may order must not
exceed 12 except in special circumstances (s 96(4) and (5)). When an order for ECT
is made, it is valid for 6 months unless a shorter period is specified or until the
patient is no longer an involuntary or detained patient.
Register of ECT
Wherever ECT is administered, a register (in a prescribed form) must be kept
(s 97).
SURGERY OR SPECIAL MEDICAL TREATMENT

Surgical operation
Section 98 of the Act defines a ‘surgical operation’ as any surgical procedure, a
series of related surgical operations or surgical procedures, and the administration
of an anaesthetic for the purposes of medical investigation.
Where a condition arises requiring surgical intervention, a voluntary patient is
generally capable of consenting to whatever procedure is necessary; for example, an
appendicectomy or repair of an inguinal hernia. However, if it is an emergency and,
for whatever reason, a voluntary patient is not able to give informed consent, the
Director General of Health or the tribunal may give consent on their behalf if it is
considered necessary, as a matter of urgency, to save life or prevent serious harm to
the patient.
In relation to an involuntary patient, non-emergency surgery can be undertaken
if the patient is able to give informed consent. Where that is not possible, the
patient’s primary carer is to be advised in writing and permission requested — giving
a maximum of 14 days to allow the primary carer to reply. If the primary carer
agrees, the Director General of Health must consent as long as he or she is satisfied
that informed consent cannot be obtained from the patient and that the surgery is
necessary and in the patient’s best interests (s 100). Before the 14 days have elapsed
and if an authorised medical officer considers the situation to be urgent or the
primary carer has indicated they have no objection, an application may be made to
the Director General for permission to proceed with the proposed surgery.
If the primary carer does not agree to the proposed surgery or cannot be located,
an authorised medical officer may apply to the tribunal for permission (s 101). The
tribunal can consent if satisfied that informed consent cannot be obtained from the
patient and the proposed surgery is in the patient’s best interests. In an emergency,
the tribunal may consider an application to proceed within the 14-day period if it
is satisfied the matter is urgent or the primary carer does not object.
Special medical treatment

Section 98 defines ‘special medical treatment’ as any treatment, procedure, opera-
tion or examination that is carried out on a person that is intended, or is reasonably
likely, to have the effect of rendering the person infertile.
349
Special medical treatment is not to be undertaken on an involuntary patient

unless it is necessary, as a matter of urgency, to save the patient’s life or prevent
serious damage to the patient’s health or consent has been given by the tribunal
(s 102). The tribunal may consent to the procedure if satisfied it is necessary to
prevent serious damage to the patient’s health and the patient is over 16 years of
age. The patient’s primary carer must be notified by the authorised medical officer
of the intended application to the tribunal and allow 14 days to elapse before the
application is made unless the authorised medical officer considers the circum-
stances urgent or the primary carer agrees (s 103).
Specific treatments prohibited under the Act

Section 83 of the Act specifically prohibits a person administering to or perform-
ing on another person psychosurgery, deep sleep therapy or insulin coma therapy.
PATIENT RIGHTS, REVIEW OF CARE AND APPEAL MECHANISMS UNDER THE ACT
Patient rights
The New South Wales Act goes to great lengths to affirm the fundamental rights
of a person brought within the provisions of the Act by reason of being a mentally
ill or mentally disordered person. Probably the most important of those rights is
the right to give and withhold consent to treatment. Unless the Act specifically
provides otherwise, every person, whether they are a voluntary (informal) or invol-
untary patient under the Act, retains the right to give or withhold consent to treat-
ment. At the same time there is a clear bias in the Act towards community care and
treatment and away from involuntary detention except as a last resort. The Act
provides a number of quite definitive statements designed to reinforce a person’s
rights and individual dignity in a number of ways and the importance of involving
the person in decisions about their care and treatment as much as possible. As set
out earlier in this chapter, section 3 identifies the objects of the Act in a manner
consistent with providing the best possible healthcare for the mentally ill or mentally
disordered in the least restrictive environment while protecting their rights as con-
sumers of healthcare.
As well, section 68 sets out the key principles that should underpin the care and
treatment of persons with a mental illness or mental disorder. For example, section
68(h) specifically provides that, where practicable, patients should be involved in
treatment decisions and plans for their care. Patient involvement is further men-
tioned in section 79, which requires an authorised medical officer of a mental health
facility to take steps to involve the patient and primary carer in patient discharge
discussions.
The overall objectives of the public health system in the provision of mental
health services are also provided in section 105. Those objectives provide for the
public health system to establish, develop, promote, assist and encourage mental
health services that ensure the highest possible standards of mental healthcare
with emphasis on that care to be comprehensive and accessible and located in
the community wherever possible. Finally, the Act also acknowledges the role of
patient participation by including a patient Statement of Rights in Schedule 3. The
350
fundamental rights guaranteed for persons dealt with under the Act can be sum-
marised as follows:
• the right to be informed;
• the right to the least restrictive environment;
• the right to an independent review of decisions made about detention and
treatment;
• the right of appeal mechanisms.
REVIEW OF CARE
The Act provides ongoing mechanisms for the review of standards of care in both
mental health facilities and associated centres overseeing community care, treatment
and orders under the Act. In New South Wales this function is undertaken by
persons designated as official visitors and authorised officers.
Authorised officers
Authorised officers are appointed by the Director General of Health (s 137).
Their task is to visit and inspect mental health facilities and conduct investigations
about care, treatment or control of persons in mental health facilities. They have
wide-ranging powers of inquiry and may request the production of books, docu-
ments and records and may cross-examine employees under oath. A failure to
comply with any requests made by an authorised officer without reasonable excuse
may result in a financial penalty (s 138). Also, in conducting their investigations
authorised officers may obtain information from employees of the facility but the
information obtained cannot be used against the employee if the employee objects
that the giving of such information may incriminate him or her (s 139).
Official visitors
Official visitors are appointed by the Minister for Health and required to visit
mental health facilities and community mental health facilities and units at least
once every month. They may or may not give notice of their intention to do so.
The role of official visitors is to be available to speak with patients or primary carers
who have the right to bring to the attention of the official visitor any matter they
are unhappy about in relation to care and treatment. Official visitors are also able
and indeed required to inspect premises and examine patient records and cannot
be prevented from inspecting any part of a mental health facility or community
mental health facility. A patient and primary carer must be advised of their right of
access to an official visitor and, if they request to speak with one, the mental health
facility is obliged to pass on that request within 2 working days. Official visitors
usually report to a person appointed as the principal official visitor who in turn
reports to the Minister for Health on a regular basis but they may report directly
to the minister if the matter is sufficiently urgent (ss 128–135 inclusive).
Specific standards regarding medication

Section 85 of the Act provides that a medical practitioner must not administer
or cause to be administered to a person a dosage of drugs which, having regard to
351
proper professional standards, is excessive or inappropriate, in relation to any

mental illness or condition from which the person is or is suspected to be
suffering.
Usage of medication to be reviewed

Section 86 of the Act provides that the medical superintendent or community
director of a mental health facility is to establish and maintain an internal review
system to monitor and review the prescription and use of drugs within the mental
health facility in terms of frequency of administration, dosage, intended and unin-
tended effects, and appropriateness of use.
Northern Territory: Mental Health and Related Services Act 1998

OBJECTIVES AND DEFINITIONS
The objectives of the Act are set out in comprehensive detail in section 3. They
embody a commitment to the proper care, treatment and protection of people with
mental illness while protecting their civil rights.
Generally, the relevant definitions for the purposes of the Act are set out in full
in section 4, although some of the more significant definitions are given separately.
For example, the definition of ‘mental illness’ is separately defined in section 6 as
follows:
1) In this Act, ‘mental illness’ means a condition that seriously impairs,
either temporarily or permanently, the mental functioning of a person in
one or more of the areas of thought, mood, volition, perception,
orientation or memory and is characterised:
a) by the presence of at least one of the following symptoms:
i) delusions;
ii) hallucinations;
iii) serious disorders of the stream of thought;
iv) serious disorders of thought form;
v) serious disturbances of mood; or
b) by sustained or repeated irrational behaviour that may be taken to
indicate the presence of at least one of the symptoms referred to in
paragraph (a). [emphasis added]
Section 6 also stipulates the necessity to have regard to internationally accepted
clinical standards, for example, as determined by the World Health Organization
or the American Psychiatric Association.
Like other states, the Northern Territory Act (s 6) provides that a person is not
considered to have a mental illness merely because he or she:
• expresses or refuses or fails to express a particular political or religious opinion
or belief, a particular philosophy or a particular sexual preference or sexual
orientation;
• engages or refuses or fails to engage in a particular political, religious or
cultural activity;
352
• engages, or has engaged, in sexual promiscuity, immoral or illegal conduct or

anti-social behaviour;
• has a sexual disorder;
• is intellectually disabled;
• uses alcohol or other drugs;
• has a personality disorder or a habit or impulse disorder;
• has, or has not, a particular political, economic or social status;
• communicates, or refuses or fails to communicate, or behaves or refuses or fails
to behave, in a manner consistent with his or her cultural beliefs, practices or
mores;
• is, or is not, a member of a particular cultural, racial or religious group;
• is involved, or has been involved, in family or professional conflict;
• has been treated for mental illness or has been detained in a hospital that
provides treatment of mental illness;
• has been admitted as an involuntary patient on the grounds of mental
disturbance; or
• has acquired brain damage.
In addition to the definition of ‘mental illness’ in section 6, ‘mentally disturbed’
is defined in section 4 as follows:
‘mentally disturbed’ means behaviour of a person that is so irrational as to
justify the person being temporarily detained under this Act.
Section 15 of the Act provides a more detailed understanding of what is meant
by ‘mental disturbance’ as distinct from ‘mental illness’, and sets out the criteria for
a person’s involuntary admission on the grounds of mental disturbance as follows:
a) the person does not fulfil the criteria for involuntary admission on the
grounds of mental illness;
b) the person’s behaviour is, or within the immediately preceding 48 hours
has been, so irrational as to lead to the conclusion that:
i) the person is experiencing or exhibiting a severe impairment of or
deviation from his or her customary or everyday ability to reason and
function in a socially acceptable and culturally appropriate manner; and
ii) the person is behaving in an abnormally aggressive manner or is
engaging in seriously irresponsible conduct that justify a determina-
tion that the person requires psychiatric assessment, treatment or
therapeutic care that is available at an approved treatment facility;
c) unless the person receives treatment or care at an approved treatment
facility, he or she:
i) is likely to cause imminent harm to himself or herself or to someone
else; or
ii) will represent a substantial danger to the general community; or
iii) is likely to suffer serious mental or physical deterioration;
353
d) the person is not capable of giving informed consent to the treatment

or care or has unreasonably refused to consent to the treatment or care;
and
e) there is no less restrictive means of ensuring that the person receives the
treatment or care.
The Act does not define a ‘hospital’, but instead, in section 4, defines an ‘approved
temporary treatment facility’ and an ‘approved treatment facility’. Both facilities are
deemed to be, or be part of, places or premises declared as such for the purposes of
section 20. That section states that the minister may declare a place or premises or
part thereof to be an approved treatment facility or a temporary approved treatment
facility for the provision of care and treatment under the Act. A similar provision
applies to the declaration by the minister of a place to be an ‘approved treatment
agency’ for the purposes of the Act.
One expression referred to frequently throughout the Act is the person’s primary
carer. Section 7A defines ‘primary carer’ as someone providing care and support
as a relative or someone close to the person, or someone closely involved in the
treatment or care of, or support to, the person. A relative of the person includes
anyone related to the person through common ancestry, adoption, marriage, de
facto relationship or any customary law or tradition (including Aboriginal law or
tradition).
ADMISSION TO AND DETENTION IN AN APPROVED TREATMENT FACILITY

Voluntary admissions
Like most states, the Northern Territory makes provision for voluntary admis-
sions; that is, persons who may voluntarily apply to be admitted to an ‘approved
treatment facility’.
Section 25 of the Act contains the provisions pertaining to voluntary admissions,
which provide that a person who is aged 14 or over may apply to be admitted to
an approved treatment facility as a voluntary patient. As well, a parent or guardian
of a person who is under 18 may apply to have the person admitted to an approved
treatment facility as a voluntary patient. Where either of those circumstances arises,
a medical practitioner who is employed by an approved treatment agency or at an
approved treatment facility must examine the person and may admit them if he or
she is satisfied following examination that the person has given informed consent
to his or her admission.
Within 72 hours after that admission, the person must be examined by an autho-
rised psychiatric practitioner who may confirm the admission of the person as a
voluntary patient if they are satisfied following such examination that the person
has given informed consent to it. Equally the medical practitioner or authorised
psychiatric practitioner may refuse to confirm the admission of a person as a vol-
untary patient and in those circumstances the person has the right to appeal to the
Mental Health Review Tribunal (the tribunal) (s 25).
A person admitted as a voluntary patient can only be treated with his or her
informed consent or that of his or her guardian — who must also be fully informed
about the proposed treatment (s 54(1)).
354
If an authorised psychiatric practitioner has any doubts as to whether a person

is capable of giving informed consent to treatment, an application must be made
to the tribunal to determine the matter (s 54(4)). No treatment may be administered
while awaiting the tribunal’s decision unless it is necessary to prevent the person
harming himself or herself or others, to prevent further deterioration in the person’s
condition and to relieve acute symptomatology (s 54(5)).
Section 7 defines ‘informed consent’. It requires consent to be freely and volun-
tarily given in writing and the person to be capable of understanding the effect of
giving consent. Section 7(3) lists the information that must be provided to a person
to enable informed consent to be given. As well, steps must be taken to secure a
‘competent interpreter’ if required and the person must be given time to consider
his or her decision once all the information is provided.
A voluntary patient may leave an approved treatment facility at any time and
must be advised of that right when admitted as a voluntary patient (s 29).
A medical practitioner or senior registered nurse on duty may detain a voluntary
patient for up to 6 hours if he or she believes the person’s condition has deteriorated
since admission and that the person may fulfill the criteria for admission as an
involuntary patient. Where that occurs, an authorised psychiatric practitioner must
be notified and reasonable force may be used to detain the person including restraint
and seclusion (s 30).
Involuntary admission
Under the Act a person may be admitted on an involuntary basis on the grounds
of mental illness or mental disturbance.
Involuntary admission on the grounds of mental illness

Section 14 of the Act sets out the criteria for the involuntary admission of a
person on the grounds of mental illness as follows:
a) the person has a mental illness;
b) as a result of that mental illness:
i) the person requires treatment that is available at an approved treat-
ment facility;
ii) without the treatment the person is likely to:
A) cause serious harm to himself or herself or to someone else; or
B) suffer serious mental or physical deterioration; and
iii) the person is not capable of giving informed consent to the treatment
or has unreasonably refused to consent to the treatment; and
c) there is no less restrictive means of ensuring that the person receives the
treatment. [emphasis added]
The criteria for admission on the grounds of mental disturbance that are set out
in section 15 have been discussed above (see ‘Objectives and definitions’).
In the first instance, a person may request that he or she be assessed to determine
whether they need treatment under the Act, or another person who is concerned
about the person may request such an assessment (s 32). That request may be made
355
to a medical practitioner, a psychiatric practitioner or a designated mental health

practitioner. Those persons may decline such a request if they believe the person
does not need treatment (s 32(5)).
A designated mental health practitioner is a person appointed under section 23
of the Act and must be a psychologist, registered nurse, occupational therapist,
aboriginal health worker, social worker or ambulance officer, all of whom must have
two years’ experience and undergone approved training. A psychiatric practitioner
must be a specialist psychiatrist.
The assessment must be undertaken as soon as practicable (s 33). Following the
assessment, a recommendation may be made by the assessing practitioner for a
psychiatric examination to be undertaken if they are satisfied the person meets the
criteria for involuntary admission on the grounds of mental illness or mental dis-
turbance (s 34).
Once a recommendation for a psychiatric examination is made, the practitioner,
ambulance officer or other person specified is authorised to control and bring the
person to an approved treatment facility or hospital. If considered necessary, treat-
ment may be administered to the person without the approval of the tribunal to
prevent harm to the person or to others (s 34). The police may be asked to assist if
necessary and may use reasonable force to do so. Additionally, a police officer may
apprehend and bring a person to a psychiatric practitioner, medical practitioner or
authorised mental health practitioner for assessment if the police officer believes the
person may require treatment under the Act and is likely to cause harm to himself or
herself or others. If necessary, the police officer may enter premises without a warrant
to apprehend the person and use any reasonable force and assistance required (s 32A).
A practitioner or a police officer may ask the tribunal to issue an assessment
warrant if they consider it necessary (s 37). If issued by the tribunal, the person
may be apprehended, detained and taken to an approved treatment facility or other
nominated place for assessment.
The recommendation for a psychiatric examination remains in force for 14 days.
It may be revoked by the assessing practitioner following a further assessment. If
revoked, the person must be released.
Once a person is detained as an involuntary patient following a recommendation
for psychiatric examination, they may be detained at an approved treatment facility
for up to 24 hours for examination by an authorised psychiatric practitioner. If
an authorised psychiatric practitioner is satisfied, following the examination,
that the person fulfils the criteria for involuntary admission, the person may be
detained initially for 14 days (s 39). The person cannot be detained beyond that
time unless an authorised psychiatric practitioner is satisfied that the person fulfils
the criteria for involuntary admission on the grounds of mental illness or mental
disturbance.
As an alternative to involuntary admission, the psychiatric practitioner may con-
clude that the person may be managed as an involuntary patient in the community.
If so, he or she must make an interim community management order in relation
to the person (s 38). However, if the person does not fulfil the criteria for admission
as an involuntary patient on the grounds of mental illness or mental disturbance
or for involuntary community treatment, the person must be released.
356
Once the person is admitted as an involuntary patient he or she must be exam-

ined by an authorised psychiatric practitioner not less than once every 72 hours.
No later than 1 day following detention on the grounds of mental illness or
mental disturbance, the practitioner must notify the person of the admission, as
well as a legal practitioner who is prepared to act on behalf of the person. Where
considered to be in the patient’s best interests the person’s primary carer, or a person
closely involved in the treatment or care of the person, must also be notified of the
grounds on which the person was admitted and the section under which the person
was admitted (s 41).
Involuntary admission on the grounds of mental disturbance

Where a patient is detained as an involuntary patient on the grounds of mental
disturbance, he or she may be initially detained for 72 hours. The person may be
detained for a further 7 days if, after examining the person, two authorised psychi-
atric practitioners believe the person needs care and treatment and that the person
is not capable of consenting or unreasonably refuses to give such consent and there
is no less restrictive way to provide the necessary care and treatment (s 42). During
that period, the person must be examined by an authorised psychiatric practitioner
every 24 or 72 hours depending on the basis for detention (s 44). Before the 7-day
period expires, the person may be admitted as a voluntary patient, admitted as an
involuntary patient on the grounds of mental illness, placed on an interim com-
munity management order, or released.
No later than 1 day after being detained, a practitioner must notify the person,
the person’s adult guardian, a legal practitioner acting for the person, the person’s
primary carer and the tribunal of the admission. A decision may be taken not to
notify the person’s primary carer if it is considered not to be in the person’s best
interests (s 43).
If the person is released and an authorised psychiatric practitioner considers that
he or she may cause imminent harm to others on his or her release, that practitioner
must notify the Commissioner of Police or a designated member of the police force.
Also, the practitioner must notify, where practicable, those persons who may be in
danger, not less than 12 hours before the person is released (s 44(4)).
Treatment and review after involuntary admission

The Mental Health Review Tribunal is required to review a decision of an autho-
rised psychiatric practitioner to detain a person on the grounds of mental illness or
mental disturbance, or making the person subject to an involuntary interim com-
munity management order, within 7 days of that person’s being involuntarily
detained or made subject to an involuntary interim community management order
(s 123).
In undertaking that review, the tribunal may uphold the decision of the practi-
tioner or substitute its own decision including revoking the admission of the person
as an involuntary patient or as a subject to an involuntary interim community
management order (s 123(5) and (7)).
In relation to a person detained on the grounds of mental illness, if the tribunal
decides to continue the person’s detention, it must be for no longer than 3 months
357
and the tribunal must fix a date on which that order is to be further reviewed
(s 123(5)(a)). If the tribunal is satisfied the person fulfills the criteria for involuntary
admission on the grounds of mental disturbance, it may order the person to be
detained for no longer than 14 days and, in doing so, must fix a date for that order
to be reviewed (s 123(5)(b)). If the tribunal is satisfied the person is able to be
treated as an involuntary patient in the community, it may make a community
management order for no longer than 6 months and, in doing so, must fix a date
for that order to be reviewed (s 123(5)(c)).
Any treatment given to a person after an involuntary admission must be autho-
rised by the tribunal unless administered to prevent harm to the person or to others.
Such treatment must be authorised by an authorised psychiatric practitioner (s 55).
Every effort must be made to involve the person in considering the appropriate
treatment and any alternatives available.
In considering treatment options, the tribunal or an authorised psychiatric prac-
titioner must consider the treatment that is in the person’s best interests, that the
benefits outweigh the risks, that alternative treatment is not readily available and
the treatment is the least restrictive option (s 56). Records must be kept of whatever
treatment options are decided upon (s 57).
FORMS AND TYPES OF TREATMENT UNDER THE ACT
Community management orders
Like most states, the Northern Territory makes provision for persons to be treated
in the community rather than having to be admitted to an approved treatment facility.
In the first instance, this is by way of an interim community management order which,
if confirmed by the tribunal, is renewed as a community management order.
An authorised psychiatric practitioner may make an interim community manage-
ment order in the first instance in respect of a person where that practitioner is
satisfied that the person fulfils the criteria for involuntary treatment in the com-
munity (s 45(1)).
An interim community management order should not be made unless it is
approved by the person in charge of an approved treatment facility who agrees that
it is appropriate and able to be implemented by an approved treatment agency or,
where the person is a prisoner, that it is able to be implemented in the prison where
the person is in custody (s 45(2)).
An interim community management order remains in force for 14 days and the
following treatment may be administered under such an order (s 45(4)):
• treatment that will prevent the person causing imminent harm to himself or
herself or someone else;
• treatment that will prevent behaviour of the person that is likely to cause
imminent harm to himself or herself or someone else;
• treatment that will prevent any further physical or mental deterioration of the
person;
• treatment that will relieve acute symptomatology.
An interim community management order must contain specific provisions
including the approved treatment agency that is to supervise it, where the treatment
358
is to occur as well as details of the treatment to be given (s 46). As well, once an

interim community management order has been made the authorised psychiatric
practitioner must, no later than 1 day after making the order, notify the Mental
Health Review Tribunal of its being made (s 47). The practitioner must also notify
the person himself or herself, their legal practitioner, the person’s primary carer and
the principal community visitor that the order has been made.
Once the Mental Health Review Tribunal has been notified that an interim
community management order has been made, it must review that order as
soon as practicable within 14 days. Having done that, the tribunal may confirm
a community management order in relation to a person for no longer than
6 months and, where it does so, must fix a date for the order to be reviewed again
(s 123).
A community management order must be in writing and specify the following
(s 49):
• the name and residential address of the person to whom it relates;
• the name of the approved treatment agency that is to supervise and review the
community management order;
• the name of the approved treatment agency that is to implement the
community management order;
• the organisations or persons (other than the approved treatment agency)
treating or caring for the person under the community management order;
• the time and days of the week when a person is to attend the approved
treatment agency or when a person treating or caring for the person will
attend the person’s residence;
• the medication or treatment the person is to receive under the community
management order;
• the rehabilitation, support and other services the person is to receive under the
community management order; and
• any other information the tribunal thinks fit.
THE REGULATION AND PROHIBITION OF CERTAIN FORMS OF TREATMENT UNDER

THE ACT
Psychosurgery, deep sleep therapy, insulin therapy and sterilisations
Psychosurgery as defined in section 58, deep sleep therapy, insulin coma or sub-
coma therapy (s 59), and sterilisation as a treatment for mental illness or mental
disturbance (s 60) are all prohibited under the Act. Any person who performs any
of those treatments on a person is liable to a penalty of $10 000.
Mechanical means of bodily restraint

Mechanical restraint is defined in section 61 of the Act as the application of a
device (including a belt, harness, manacle, sheet and strap) on a person’s body to
restrict the person’s movement, but does not include the use of furniture (including
a bed with cot sides and a chair with a table fitted on its arms) that restricts the
person’s capacity to get off the furniture.
359
Mechanical restraint of a person in an approved treatment facility may only be

applied where no other less restrictive method of control is applicable and it is
necessary for the purposes of medical treatment to prevent the person from causing
injury to himself or herself or others and to prevent the person from persistently
destroying property or absconding from the facility.
Mechanical restraint cannot be applied unless it is approved by an authorised
psychiatric practitioner or, in the case of an emergency, the senior registered nurse
on duty. Where it is approved by the senior registered nurse on duty, he or she must
notify the person in charge of the approved treatment facility and an approved
psychiatric practitioner as soon as practicable. The form of the mechanical restraint
to be used and the duration of its application must be determined by the authorised
psychiatric practitioner or senior registered nurse who approves it and such restraint
may be applied without the person’s consent.
If mechanical restraint is to be applied, the person to whom it is applied (s 61(8)):
• must be kept under continuous observation by a registered nurse or medical
practitioner;
• must be reviewed, as clinically appropriate to his or her condition, by a
registered nurse at intervals of no longer than 15 minutes;
• subject to any other direction, must be examined by a medical practitioner at
intervals of no longer than 4 hours;
• must be reviewed by an authorised psychiatric practitioner if the mechanical
restraint remains applied for 6 hours;
• must be supplied with bedding and clothing that is appropriate in the
circumstances;
• must be provided with food and drink at appropriate times;
• must have access to adequate toilet facilities; and
• must be provided with any other psychological and physical care appropriate
to the person’s needs.
Any mechanical restraint applied to a voluntary patient must not be for a period
longer than 6 hours (s 61(10)).
Records of restraint applied must be kept and a copy placed in the person’s
medical record (s 61(13)). The record must note (s 61(12)):
• the form of restraint applied;
• the reasons why restraint was applied;
• the name of the person who approved the restraint;
• the name of the person who applied the restraint;
• the period of time the restraint was applied.
The person in charge of an approved treatment facility must ensure that the adult
guardian of a patient where restraint is applied is notified as soon as possible:
• that mechanical restraint was applied to the person;
• the reasons why the mechanical restraint was applied;
360
• the form of restraint applied; and

• the period of time the restraint was applied.
Seclusion
For the purposes of section 62 of the Act ‘seclusion’ means the confinement of
the person, at any hour of the day or night, in a room from which free exit is
prevented.
The provisions in relation to placing a person in seclusion, insofar as the question
of authority and records that must be kept of that process, are in relatively similar
terms to that of mechanical restraint. Where a person is kept in seclusion he or she
(s 62(8)):
• must be visited by a registered nurse at intervals of no longer than 15 minutes;
• must be examined by a medical practitioner at intervals of no longer than
4 hours;
• must be reviewed by an authorised psychiatric practitioner, if the person is
kept in seclusion for more than 6 hours;
• must be supplied with bedding and clothing that is appropriate in the
circumstances;
• must be provided with food and drink at appropriate times;
• must have access to adequate toilet facilities; and
• must be provided with any other psychological and physical care appropriate
to the person’s needs.
Similar provisions apply to the keeping of records in relation to seclusion as are
required in relation to restraint.
Electroconvulsive therapy (ECT)
Electroconvulsive therapy is permitted in accordance with the provisions set out
in section 66 of the Act. ECT must not be performed unless the person’s informed
consent is obtained or the person’s adult guardian consents (s 66(1)). Where a
person is unable to give informed consent, the tribunal may authorise ECT where
two psychiatric practitioners report that the person’s condition is such that ECT is
reasonable and proper treatment and the person’s primary carer cannot be located
(s 66(2)). At least two qualified medical practitioners must be present when ECT
is performed (s 66(6)).
ECT may be performed on a person who is an involuntary patient without the
tribunal’s consent where two authorised psychiatric practitioners are satisfied that
it is immediately necessary to save the person’s life, to prevent the person suffering
serious mental or physical deterioration, or to relieve severe distress (s 66(3)). Where
ECT is performed without the authority of the Mental Health Review Tribunal,
the tribunal is required to be advised as soon as practicable after it is performed.
Non-psychiatric treatment
Where necessary, medical or surgical treatment that is unrelated to a mental
illness or mental disturbance may be administered to a person where the consent
361
of the person or the person’s guardian is obtained or it is approved by the tribunal

(s 63). For example, a person may require surgery to repair a hernia or medication
for hypertension. Such treatment is referred to as ‘non-psychiatric treatment’.
The Act precludes clinical or experimental treatment on a person who is an
involuntary patient or subject to a community management order unless approved
by an ethics committee and the informed consent of the person is obtained or
approval given by the tribunal (s 65).
PATIENT RIGHTS, COMMUNITY VISITORS AND APPEAL MECHANISMS

UNDER THE ACT
Patient rights
Section 87 provides that, no later than 1 day after a person is admitted to
an approved treatment facility or a community management order is made in
respect of that person, the person in charge of the approved treatment facility
or approved treatment agency must ensure that the person is given information
setting out the person’s rights and entitlements under the Act, how those rights
and entitlements may be accessed and exercised, the advocacy and legal services that
are available to the person, and any other information relating to the person’s
admission and treatment as may be considered relevant. As much as possible of
that information must be given both orally and in writing and in a language
and in a form which the person can readily understand and which is culturally
appropriate.
The person in charge of an approved treatment facility must also ensure that the
person and, if considered to be in the person’s best interests, the person’s primary
carer, is provided with information as far as is practicable of the details of the type,
dosage, expected benefits and side effects of the medication or treatment being
administered to the person at an approved treatment facility. Likewise, in relation
to a community management order being supervised by an approved treatment
agency (s 88).
Community visitors
The Act provides for the appointment of persons known as community visitors.
Their task, like that of official visitors in most other states, is to inquire into and
make recommendations relating to (s 104):
• the adequacy of services for accessing and treating persons in approved
treatment facilities or by approved treatment agencies;
• the standard and appropriateness of facilities for the accommodation, physical
wellbeing and welfare of persons receiving treatment or care at approved
treatment facilities or by approved treatment agencies;
• the adequacy of information relating to the rights of persons receiving
treatment at approved treatment facilities or by approved treatment agencies
and the complaint procedures under the Act;
• the accessibility and effectiveness of complaint procedures under the Act;
• the failure of persons employed in approved treatment facilities or by approved
treatment agencies to comply with the provisions of the Act;
362
• any other matter that a community visitor considers appropriate having regard
to the principles and objectives of the Act; and
• any other matter as directed to the principal community visitor by the
Minister for Health.
Community visitors are empowered to visit approved treatment facilities or

approved treatment agencies and provide reports arising from their visits, including
any findings or recommendations, to the principal community visitor. Any person
who is receiving treatment or care at an approved treatment facility or by an
approved treatment agency must be able to access the community visitors when
they visit that facility on a regular basis (s 108).
MENTAL HEALTH REVIEW TRIBUNAL

The Mental Health Review Tribunal is established under section 118 of the Act and
its major roles are to:
• review long-term voluntary admissions (s 122);
• review involuntary admissions and community management orders (s 123);
• review reports as provided to it (s 125);
• hear appeals against decisions of a medical practitioner or an authorised
psychiatric practitioner under certain sections of the Act (s 127).
An application may be made to the tribunal by the person who is the subject of
the tribunal’s decision. As well, an application may be made on the person’s behalf
by the person’s adult guardian, representative, legal practitioner, or a person with a
genuine interest and concern for the person (s 127(3)).
The tribunal has the power to make orders to vary, affirm or set aside orders
already made.
APPEALS TO THE SUPREME COURT OF THE NORTHERN TERRITORY

Section 142 of the Act provides that a person aggrieved by a decision or refusal of
the tribunal within a reasonable time to make a decision may appeal to the Supreme
Court against that decision or refusal. Also, a person who has a sufficient interest
in the matter which is the subject of a decision or refusal of the tribunal may, with
the leave of the Supreme Court, appeal to the court against that decision or refusal.
Any such appeal is by way of a rehearing and, in determining the appeal, the
Supreme Court may (s 143):
• affirm, vary or set aside the decision or order of the tribunal;
• make any decision or order that the tribunal may have made;
• remit the matter to the tribunal for further consideration;
• make any other order that it thinks fit.
Queensland: Mental Health Act 2000

The Queensland mental health legislation makes provision for the involuntary
assessment, treatment and protection of persons (whether adults or minors) who
363
have a mental illness while safeguarding their rights (s 4). Section 8 sets out the
principles to be observed in the administration of the Act, while section 9 sets out
those that must be observed when exercising the powers and functions provided in
the Act for the care and treatment of persons with a mental illness or intellectual
disability. Emphasis is placed taking on the least restrictive approach to treatment
and keeping any adverse impact on a person’s liberty and rights to a minimum
having regard to the circumstances.
While the Act focuses on involuntary patients, provision is made in section 6 for
the voluntary assessment or treatment of a person; it states that the Act ‘does not
prevent a person who has a mental illness being admitted to, or receiving assessment
or treatment at an authorised mental health service other than as an involuntary
patient’.
DEFINITIONS
The schedule at the end of the Act contains an extensive dictionary that sets out
the meaning of key words for the purposes of the Act. Reference should be made
to it prior to any detailed consideration of the Act. The definition of ‘mental illness’,
however, is found in section 12 as follows:
1) Mental illness is a condition characterised by a clinically significant
disturbance of thought, mood, perception or memory.
2) However, a person must not be considered to have a mental illness merely
because of any 1 or more of the following—
a) the person holds or refuses to hold a particular religious, cultural,
philosophical or political belief or opinion;
b) the person is a member of a particular racial group;
c) the person has a particular economic or social status;
d) the person has a particular sexual preference or sexual orientation;
e) the person engages in sexual promiscuity;
f ) the person engages in immoral or indecent conduct;
g) the person takes drugs or alcohol;
h) the person has an intellectual disability;
i) the person engages in antisocial behaviour or illegal behaviour;
j) the person is or has been involved in family conflict;
k) the person has previously been treated for mental illness or been
subject to involuntary assessment or treatment.
3) Subsection (2) does not prevent a person mentioned in the subsection
having a mental illness.
Examples of where subsection (3) would be relevant include where:
• a person may have a mental illness caused by taking drugs or alcohol;
• a person may have a mental illness as well as an intellectual disability;
• on an assessment, a decision that a person has a mental illness has been made
in accordance with internationally accepted medical standards.
364
ADMISSION TO AND DETENTION IN AN AUTHORISED MENTAL HEALTH SERVICE

The dictionary contained in the schedule of the Act defines an ‘authorised mental
health service’ as follows:
a) generally—means a mental health service declared under section 495 to
be an authorised mental health service; or
b) for chapter 2—see section 15.
Chapter 2 of the Act (ss 15–48 inclusive) deals with the involuntary assessment
of a person. Within that chapter, section 15 defines, for the purposes of
Chapter 2, an ‘authorised mental health service’ as follows:
a) an authorised mental health service, other than a high security unit; or
b) a public hospital if there is no authorised mental health service readily
accessible for a person’s examination or assessment.
An example of the application of paragraph (b) above is where there is no autho-
rised mental health service in a remote or rural area of the state.
For the purposes of admission, the Act designates the admission of persons to an
authorised mental health service or hospital as voluntary or involuntary.
Voluntary admission
Section 6 of the Act provides for the voluntary admission and discharge of
persons at their own request.
Under sections 17 and 19, the process leading to an involuntary admission to an
authorised mental health service is triggered when the assessment of a person is
requested or recommended. In the first instance, section 17 provides that a ‘request’
for assessment of a person must be made by someone who:
a) is an adult; and
b) reasonably believes the person has a mental illness of a nature, or to an
extent, that involuntary assessment is necessary; and
c) has observed the person within 3 days before making the request.
[emphasis added]
Alternatively, section 19 provides that a ‘recommendation’ for assessment can
only be made in the following circumstances:
1) A recommendation for assessment for a person may only be made by a
doctor or authorised mental health practitioner who has examined the
person within the preceding 3 days.
2) However, a doctor or authorised mental health practitioner must not make a
recommendation for assessment for a relative of the doctor or practitioner.
3) An examination mentioned in subsection (1) may be carried out using
audiovisual link facilities.
An ‘authorised mental health practitioner’ is defined in section 499 of the Act as
a health service employee of an authorised mental health service or an officer of the
365
department. A healthcare practitioner may only be appointed as an authorised

mental health practitioner if the Director of Mental Health considers he or she has
the necessary expertise and experience.
Section 23 of the Act provides that a request and recommendation for assessment
must be made by different persons who must not be related.
In making a recommendation for assessment, section 20 provides it must:
a) be in the approved form; and
b) state the facts on which it is based; and
c) distinguish between the facts known because of personal observation and
facts communicated by others. [emphasis added]
A doctor or authorised mental health practitioner must not make a recommenda-
tion for assessment for a person unless the doctor or practitioner is satisfied the
assessment criteria apply to the person. Section 13 outlines what constitutes the
assessment criteria; it states that ‘assessment criteria are all of the following, based
on information available’:
a) the person appears to have a mental illness;
b) the person requires immediate assessment;
c) the assessment can properly be made at an authorised mental health service;
d) there is a risk that the person may—
i) cause harm to himself or herself or someone else; or
ii) suffer serious mental or physical deterioration;
e) there is no less restrictive way of ensuring the person is assessed.
As well, where involuntary detention occurs, the criteria include the person
himself or herself lacking the capacity to consent to being assessed or having unrea-
sonably refused to be assessed.
Where assessment documents are in force, a healthcare practitioner or ambulance
officer may take a person to an authorised mental health service for assessment
(s 25(1)). While being taken to an authorised mental health service, medication
may be administered to the person without his or her consent or where consent is
refused (s 26(1)). Such medication may only be administered if a medical practi-
tioner is satisfied it is necessary to ensure the person’s safety or that of others. A
medical practitioner or registered nurse must administer the medication using the
minimum force necessary and reasonable (s 26(2) and (3)).
The police may be called upon to assist in taking a patient to an authorised mental
health service and to ensure that reasonable help is given to do so (s 25(3)).
A recommendation for assessment remains in force for a period of 7 days
(s 21).
JUSTICES EXAMINATION ORDER
A recommendation for assessment may be made following an application by ‘a
person’ to a magistrate or justice of the peace for what is referred to as a ‘justices
examination order’.
Section 28 sets out the circumstances in which such an order may be made as
follows:
366
1) A magistrate or justice of the peace may make a justices examination

order relating to a person only if the magistrate or justice reasonably believes—
a) the person has a mental illness; and
b) the person should be examined by a doctor or authorised mental
health practitioner to decide whether a recommendation for assessment
for the person be made; and
c) the examination can not be properly carried out unless the order is
made. [emphasis added]
Once such an order is made it must be sent to an authorised mental health
service. Certain consequences then follow, as section 30 provides:
1) The justices examination order authorises a doctor or authorised mental
health practitioner to examine the person to decide whether a
recommendation for assessment for the person should be made.
2) For subsection (1), the doctor or practitioner may enter a place stated in
the order or another place the doctor or practitioner reasonably believes
the person may be found.
3) The doctor or practitioner may exercise a power under this section with
the help that is reasonable in the circumstances.
4) For subsections (1) and (2)—
a) the doctor or practitioner is a public official for the Police Powers and
Responsibilities Act 2000; and
b) a police officer may detain the person at the place for the examination
to be carried out by a doctor or authorised mental health practitioner.
5) If asked by the doctor or practitioner, a police officer must, as soon as
reasonably practicable, ensure reasonable help is given.
6) For giving the help, a police officer is taken to have responded to a
request by a public official under the Police Powers and Responsibilities
Act 2000, section 16(3).
7) In exercising a power under this section, the doctor or practitioner must,
to the extent that it is reasonable and practicable in the circumstances—
a) explain to the person, in general terms, the nature and effect of the
order; and
b) produce the order to the person for inspection.
8) Production by the doctor or practitioner of a facsimile copy of the order
is sufficient compliance with subsection (7)(b).
9) Failure to comply with subsection (7) does not affect the validity of the
exercise of the power.
10) A power under this section may be exercised at any reasonable time of
the day or night.
EMERGENCY INVOLUNTARY ASSESSMENT
In addition to a justices examination order, the Act also provides that, in emergency
circumstances, recommendation for assessment for a person may be made by a
police officer, an ambulance officer and a psychiatrist (ss 33–40).
367
A police officer or an ambulance officer may take a person to an authorised

mental health service for examination to decide if a request or recommendation for
assessment should be made if the officer reasonably believes:
a) a person has a mental illness; and
b) because of that there is an imminent risk of significant physical harm to the
person or others; and
c) any delay would be dangerous and increase the risk of harm.
Once the person is at the authorised mental health service, the police officer or
ambulance officer must make an emergency examination order (s 35). That order
allows a person to be detained for a maximum of 6 hours for examination by a
doctor or a mental health practitioner (s 36).
The emergency examination by a psychiatrist may be undertaken if the psychia-
trist considers that the person has a mental illness and ‘there is an imminent risk
of significant physical harm being sustained by the person or someone else’ (s 37(b))
and where referral to a magistrate or justice would cause delay and significant risk
of harm to others as well as the person (s 37(c)). Following the production of the
emergency examination order, the person may be transferred to an authorised
mental health service and detained for a maximum of 6 hours for the examination
to be conducted (s 40).
INVOLUNTARY TREATMENT ORDER

Section 44(1) allows a person to be detained in an authorised mental health service
for assessment. The assessment period is initially no longer than 24 hours but may
be extended by a medical practitioner for no longer than a further 24 hours but
overall must not extend more than 72 hours.
The initial assessment made by the authorised medical practitioner is to decide
whether the treatment criteria apply to the person. If so, an involuntary treatment
order will be made for the patient.
Section 14 defines the expression ‘treatment criteria’ for a person as all of the
following:
a) the person has a mental illness;
b) the person’s illness requires immediate treatment;
c) the proposed treatment is available at an authorised mental
health service;
d) because of the person’s illness—
i) there is an imminent risk that the person may cause harm to himself
or herself or someone else; or
ii) the person is likely to suffer serious mental or physical deterioration;
e) there is no less restrictive way of ensuring the person receives appropriate
treatment for the illness;
f ) the person—
i) lacks the capacity to consent to be treated for illness; or
ii) has unreasonably refused proposed treatment for the illness.
368
Section 108 contains the provisions applying to the making of an involuntary

treatment order. The order has to be in the approved form and must contain the
details as required in section 108(3)(b):
i) the time when it is made;
ii) the basis on which the doctor is satisfied the treatment criteria apply to
the patient, including the facts indicating mental illness observed by the
doctor;
iii) the authorised mental health service responsible for ensuring the person
receives treatment.
When an involuntary treatment order is made it must be categorised as either
an inpatient or community involuntary treatment order (s 109). If it is categorised
as inpatient, the person may be detained in an authorised mental health service as
an involuntary patient and the authorised doctor must tell the patient of the order
made, the category of the order and talk with the patient about the proposed treat-
ment plan (s 111). Once a person becomes an involuntary patient, the administrator
of an authorised mental health service must inform the patient, the tribunal and
the patient’s allied person in writing within 7 days (s 113).
If an involuntary treatment order is categorised as a community order, the person
may be treated in the community.
TREATMENT PLANS
Once an involuntary treatment order is made, a treatment plan must be prepared
(s 110). As provided in section 124, a patient’s treatment plan must state:
a) in general terms, an outline of the proposed treatment or care to be
provided in relation to the patient; and
b) in specific terms, the method by which, the frequency with which, the
place where, the duration of and the persons by whom, the treatment
or care is to be provided; and
c) the intervals for the patient’s regular assessment.
…
2) Also, for a patient under the community category of an involuntary
treatment order, the treatment plan for the patient must—
a) if the patient is to be treated at a health service other than an autho-
rised mental health service—state the health service; and
b) if the patient is to be treated by a health practitioner who is not an
employee of a public sector mental health service—state the name of
the practitioner.
3) However, the treatment plan may only state a health practitioner under
subsection (2)(b) with the practitioner’s agreement.
There is provision for an involuntary patient’s treatment plan to permit limited
community treatment for the patient, provided it does not present an unacceptable
risk to the public. Limited community treatment is treatment or rehabilitation in
369
the community other than under the community category of an involuntary treat-
ment order.
THE ROLE OF THE MENTAL HEALTH REVIEW TRIBUNAL AND MENTAL

HEALTH COURT
The Act makes provision for the following:
• the Mental Health Review Tribunal;
• the Mental Health Court.
The setting up of these two bodies and their respective jurisdictional roles are
essentially complementary, with the role of the Mental Health Court, amongst
others, to hear and determine appeals from the tribunal.
Mental Health Review Tribunal

Section 437 of the Act sets out the jurisdiction of the tribunal as follows:
a) reviewing the application of treatment criteria for patients;
b) reviewing the detention of young patients in high security units;
c) reviewing the mental condition of forensic patients and forensic disability
clients;
d) reviewing the fitness for trial of—
i) persons found by the Mental Health Court to be unfit for trial and
the unfitness for trial is not of a permanent nature; and
ii) persons for whom a jury has made a section 613 or 645 finding;
e) deciding applications for forensic information orders;
f ) deciding treatment applications;
g) deciding applications for approval for particular patients to move out of
Queensland;
h) deciding appeals against decisions of administrators of authorised mental
health services to refuse to allow persons to visit involuntary patients in
health services; …
The tribunal is required to conduct reviews of the treatment criteria for patients
under involuntary treatment orders 6 weeks after the initial order is made and
thereafter every 6 months (s 187).
A review may also take place if an application has been made by, or on behalf
of, a patient or the Director of Mental Health. In conducting a review the tribunal
must consider the provisions detailed in sections 187 and 188 of the Act.
If an involuntary treatment order has been in force for more than 6 months, the
tribunal is to consider whether an examination and report should be obtained from
a psychiatrist, other than the psychiatrist responsible for the patient’s treatment
(s 190). In hearing the matter, the tribunal may either confirm or revoke the invol-
untary treatment order. If the tribunal confirms the order, it may direct that category
be changed from a hospital order to a community order or detention in another
mental health service. In making such a direction, the tribunal is to have regard to
370
the patient’s mental state and psychiatric history, social circumstances and response
to treatment and willingness to continue treatment (s 191).
A party may appeal against a decision of the tribunal to the Mental Health Court.
Mental Health Court
The court comprises a Supreme Court Judge sitting alone, assisted by two psy-
chiatrists, or one in certain circumstances (s 382).
The powers of the Mental Health Court, as provided in section 383, are:
1) …
a) deciding appeals against decisions of the tribunal;
b) deciding references of the mental conditions of persons;
c) investigating the detention of patients in authorised mental health
services …
2) In exercising its jurisdiction, the court—
a) must inquire into the matter before it; and
b) may inform itself of any matter relating to the inquiry in any way it
considers appropriate.
As referred to above, the Act provides for an involuntary treatment order to be made
(s 108), which is supported by a treatment plan (s 110). An involuntary treatment
order may be categorised as an inpatient or community involuntary treatment order.
An involuntary treatment order remains in force until it is revoked by the autho-
rised doctor or on review or appeal. If no treatment has been given under the treat-
ment plan for a period of six months the involuntary treatment order ends (s 118).
Where a person is the subject of an involuntary treatment order in the commu-
nity and fails or refuses to comply with the treatment plan prescribed, steps may
be taken to have the person apprehended and admitted as an involuntary patient
to an authorised mental health service for treatment (s 117).
The Act makes specific reference to electroconvulsive therapy (ECT) and
psychosurgery.
The administration of ECT is provided for in sections 138–140. The circum-
stances in which ECT may be administered, on the basis of informed consent or
otherwise, is set out in section 139 as follows:
1) A doctor may perform electroconvulsive therapy on a person at an
authorised mental health service if—
a) the person has given informed consent to the treatment; or
b) the tribunal has approved the use of the treatment on the person.
2) However, a doctor must not, under subsection (1)(b), perform
electroconvulsive therapy on a person who is not an involuntary patient if
the doctor knows the person objects to the therapy.
3) In this section—
object, for a person, means—
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a) the person indicates the person does not wish to have electroconvulsive
therapy; or
b) the person previously indicated, in similar circumstances, the person
did not then wish to have electroconvulsive therapy and since then the
person has not indicated otherwise.
Section (3)(b) example

An indication may be given in an enduring power of attorney or advance health
directive or in another way, including, for example, orally or by conduct.
The Act requires that informed consent to ECT must be given in writing. Prior
to obtaining a person’s written consent he or she must be given the fullest explana-
tion as to the purpose, method, likely duration and expected benefit of ECT as well
as the possible pain, discomfort, risks and side effects of the treatment and alterna-
tive treatments available (s 137).
ECT may be administered in an emergency if it is considered necessary to save
the patient’s life or to prevent the patient suffering irreparable harm (s 140).
Psychosurgery
Section 161 of the Act makes provision for this treatment in the following
terms:
1) A person must not perform psychosurgery on another person other than
under this section.
Maximum penalty—200 penalty units or 2 years imprisonment.
2) A doctor may perform psychosurgery on a person if:
a) the person on whom the treatment is performed has given informed
consent to the treatment; and
b) the tribunal has given approval to the treatment. [emphasis added]
The information to be given to a person prior to obtaining the person’s written
consent to perform psychosurgery is the same as that applying to ECT treatment
detailed above.
TREATMENT PROHIBITED BY THE ACT

Section 162 specifically prohibits the administration of insulin-induced coma
therapy or deep sleep therapy treatment.
RESTRAINT AND SECLUSION

The power to restrain patients in mental health facilities or to place a patient in
seclusion can be a very contentious issue in the care of involuntary mentally ill
patients. For good and sound reasons, the Act makes very detailed provisions con-
cerning these matters. Because restraint and detention orders invariably involve
nursing staff, the legislative provisions in relation to these two matters should be
known by all nursing staff caring for involuntary patients in authorised mental
health services in Queensland.
372
Restraint
Sections 162A–162I inclusive contain the provisions in relation to restraint. A
definition of ‘mechanical restraint’ is to be found in section 162A, and section 162D
allows a doctor to authorise mechanical restraint if the doctor is satisfied:
… it is the most clinically appropriate way of preventing injury to the
patient or someone else.
In authorising such restraint the doctor is required to record the following details
in the patient’s clinical file (s 162E):
a) the type of restraint authorised;
b) the reasons for the restraint;
c) any restrictions on the circumstances in which restraint may be applied;
d) the maximum period or periods for which the restraint may be applied;
e) the intervals at which the patient must be observed while the restraint
is applied;
f ) any special measures necessary to ensure the patient’s proper treatment
or care while the restraint is applied;
g) the time (not longer than 3 hours after the authorisation is given)
when the authorisation ends.
Once authorised, the obligations of the senior registered nurse are also provided
for in the following terms (s 162G):
The senior registered nurse on duty must—
a) ensure the restraint is applied as authorised by the doctor; and
b) ensure the patient’s reasonable needs are met, including for example,
being given—
i) sufficient bedding and clothing; and
ii) sufficient food and drink; and
iii) access to toilet facilities; and
c) record the following details in the patient’s clinical file—
i) the type of restraint applied;
ii) if the doctor has stated any restrictions on the application of the
restraint—the circumstances in which the restraint was applied;
iii) the time the restraint was applied;
iv) the person who applied the restraint;
v) the time the restraint was removed. [emphasis added]
Section 162H permits the senior registered nurse, if satisfied the patient can be
safely treated without the restraint, to immediately direct the removal of the restraint.
Seclusion
Sections 162J–162W inclusive contain the provisions in relation to seclusion.
Both a doctor and, in urgent circumstances, the senior registered nurse on duty
may authorise seclusion (s 162L).
373
The circumstances warranting seclusion are contained in section 162M, that is:
a) it is necessary to protect the patient or other persons from imminent
physical harm; and
b) there is no less restrictive way of ensuring the safety of the patient or others.
Provision is made that seclusion orders must be documented (s 162O), continu-
ous observations must be maintained (ss 162P and 162S), there are circumstances
in which the senior registered nurse may end and authorise seclusion (ss 162Q and
162R), there are requirements as to ensuring the patient’s needs are met (s 162T)
and there are times the use of reasonable force may be necessary (s 162U).
Allied person
Unlike other states who use the term ‘official visitor’ or ‘community visitor’,
Queensland has provided for an involuntary patient to choose a person to be an
‘allied person’. Sections 340 and 341 set out the role of that person and how the
person may be chosen, as follows:
Section 340 Function of allied person
The function of an involuntary patient’s allied person is to help the
patient to represent the patient’s views, wishes and interests relating to
the patient’s assessment, detention, treatment and care under this Act.
Section 341 Patient may choose allied person
1) An involuntary patient may choose any 1 of the following persons,
other than a health service employee at the patient’s treating health
service, who is capable, readily available and willing to be the
patient’s allied person for this Act—
a) if the patient is a minor—a parent of the minor or the minor’s guardian;
b) if the patient has a personal guardian—the guardian;
c) if the patient has a personal attorney—the attorney;
d) an adult relative or adult close friend of the patient;
e) an adult carer of the patient;
f ) another adult.
In circumstances where the patient does not have the capacity to choose an allied
person, section 342 provides the alternatives that must be followed.
Statement of rights
Both the patient and the patient’s allied person must be given a statement of
rights in a language that they understand (s 345), and it must contain (s 344):
a) the rights of patients and allied persons for patients under this Act;
b) the rights of patients to make complaints about the service provided at an
authorised mental health service and how the complaints are made.
The statement may also contain anything else the director considers appropriate,
including, for example, information for relevant standards for providing mental
health services.
374
Appeal rights
The right of a patient or a person acting on his or her behalf to appeal to the
tribunal for a review of an involuntary treatment order has already been detailed
above as well as the right of a party to appeal a decision of the tribunal to the Mental
Health Court.
South Australia: Mental Health Act 2009

The Mental Health Act 2009 commenced in July 2010. The objectives of the Act
(s 6) are to ensure that people with a serious mental illness:
• receive a comprehensive range of services of the highest standard for their
treatment, care and rehabilitation with the goal of bringing about their
recovery as far as is possible; and
• retain their freedom, rights, dignity and self-respect as far as is consistent with
their protection, the protection of the public and the proper delivery of the
services; and
• in order to do that, allow for such persons to receive community treatment or
detention and treatment where required.
Additionally, section 7 of the Act establishes the guiding principles to be observed

by the Minister, the Board, Chief Psychiatrist, healthcare professionals and other
persons and bodies in the administration of the Act and the discharge of their
respective functions.
Reference to ‘the Board’ throughout the Act means the Guardianship Board,
established under the Guardianship and Administration Act 1993 (SA). The Guard-
ianship Board plays a significant role in the review, and the making, of detention
and treatment orders under the Mental Health Act.
DEFINITIONS
The definitions of relevant words used in the Act are generally found in section 3.
For example, the definition of ‘mental illness’ for the purposes of the Act is expressed
as ‘any illness or disorder of the mind’. The definition is extremely general in nature.
Indeed, the absence of clarity in the definition leaves the judgment as to what is or
is not mental illness and who is or is not suffering from mental illness largely up
to the determination of the individual psychiatrist or medical practitioner or to the
courts if they are ever called upon to do so.
The definition of mental illness in section 3 is subject to Schedule 1 of the Act
which lists certain conduct, some 13 types in all, that may not, by itself, indicate
mental illness. It includes, for example, that a person expresses or refuses or fails to
express a particular opinion or belief as to politics or religion, or a particular phi-
losophy, or sexual preference or orientation. Significantly, subclause (j) of Schedule
1 identifies that where a person ‘has developmental disability of mind’ it does not
mean the person has a mental illness.
It is worth emphasising at this point that there is a strong interrelationship
between the Mental Health Act and the Guardianship and Administration Act. The
role of the Guardianship Board in overseeing the care and treatment of people with
375
a mental illness has already been referred to. Further, the Guardianship and Admin-
istration Act defines ‘mental incapacity’ as:
… the inability of a person to look after his or her own health, safety or
welfare or to manage his or her own affairs, as a result of—
a) any damage to, or any illness, disorder, imperfect or delayed develop-
ment, impairment or deterioration, of the brain or mind; or
b) any physical illness or condition that renders the person unable to
communicate his or her intentions or wishes in any manner whatsoever.
Such a definition could include persons with a mental illness as well as persons
with an intellectual disability and persons with senile dementia.
ADMISSION TO AND DETENTION IN AN APPROVED TREATMENT CENTRE

The Mental Health Act refers to what is known as an ‘approved treatment centre’ as
the place where treatment is provided and where persons may be detained. Section
3 provides that an ‘approved treatment centre’ is any place determined by the min-
ister under Part 12 Division 5 of the Act. In that Division, section 96 states that
in determining a place to be an approved treatment centre, the minister may attach
such conditions or limitations to the decision and may vary or revoke a determina-
tion made. Similarly, in section 97, the minister may determine a place to be ‘a
limited treatment centre’ and may vary or revoke such a determination.
Where the expression ‘treatment centre’ is used in the Act it means an ‘approved
treatment centre’ or a ‘limited treatment centre’.
Persons admitted to, or treated at, an approved treatment centre fall under one
of two categories — voluntary or involuntary.
Voluntary admission and treatment

Section 8 of the Act provides that a person may be admitted as a patient to a
treatment centre at his or her own request and may leave that treatment centre at
any time unless a detention and treatment order applies.
As soon as practicable after admission, a voluntary patient must be given a written
statement of rights (s 9). As well, a copy must be given to the patient’s guardian,
medical agent, relative, carer or friend.
A written treatment and care plan must be formulated for the patient, preferably
in consultation with the patient or guardian, medical agent, relative, carer or friend.
The plan must describe the treatment and care that will be provided including
rehabilitation and other services to be provided after discharge (s 39).
Involuntary admission and treatment

Power to apprehend and restrain a person for examination
The Act gives power to members of the police force and to authorised officers under
the Act to apprehend persons who appear to be suffering from a mental illness
(ss 56 and 57). Where an authorised officer or a member of the police force has
reasonable cause to believe that a person has a mental illness and the person has
caused harm, or there is a significant risk of the person causing harm to himself or
herself or to others, the police officer or authorised officer may enter any place to
376
apprehend and restrain the person using such force as is reasonably necessary in the
circumstances and take him or her as soon as practicable to a treatment centre for
examination.
As defined in section 3, an ‘authorised officer’ is a mental health clinician, an
ambulance officer, a person employed as a medical officer or flight nurse employed
by the Royal Flying Doctor Service Central Operations or South Eastern section,
or a person of a class identified in the Regulations of the Act.
A ‘mental health clinician’ is defined as a person engaged in the treatment or care
of patients and classified by the Chief Psychiatrist as a mental health clinician for
the purposes of the Act.
The Act provides for treatment to be given on an involuntary basis either in the
community by the making of a community treatment order (CTO) or in detention
by the making of a detention and treatment order (DTO).
Community treatment orders

There are two levels of community treatment orders. A level 1 CTO may be made
by a medical practitioner or authorised health professional (s 10) if it appears:
• the person has a mental illness; and
• the person requires treatment for his or her protection and the protection of
others; and
• there are facilities and services available; and
• there is no less restrictive means available than a CTO for the person’s illness.
Reference to an ‘authorised health professional’ above is defined as a person or

specified class of persons as determined by the minister (Pt 12 Div 4). Registered
nurses and other healthcare professionals would fall into this category.
When a decision is made to make a level 1 CTO, consideration must be given
to having the person receive the treatment on a voluntary basis (s 10(2)).
A level 1 CTO must be in writing and expires 28 days after the order is made
(s 10(3) and (4)). If a level 1 CTO is not made by a psychiatrist or an authorised
medical practitioner, one of them must examine the patient within 24 hours of the
order being made, or as soon as practicable. On completion of the examination the
psychiatrist or authorised medical practitioner may confirm the level 1 CTO or
revoke it.
Once a level 1 CTO is confirmed or revoked by the psychiatrist or authorised
medical practitioner, the Guardianship Board (the board) and the Chief Psychiatrist
must be notified in writing within one business day of the order being made or
revoked (s 11). A copy of the order must be given to the patient as soon as practi-
cable as well as a statement of rights in a language or manner the patient can
comprehend (s 12). A copy must also be given to the patient’s guardian, medical
agent, relative, carer or friend as appropriate (s 12).
Where a level 1 CTO is made, treatment authorised by a psychiatrist or an
authorised medical practitioner who has examined the patient may be given despite
the patient’s refusal to, or absence of, consent (s 13). Treatment may also be given
without authorisation in an emergency if a medical practitioner considers the
377
treatment is needed for the patient’s wellbeing and authorisation is not readily
obtainable (s 13).
The board is required to review a level 1 CTO as soon as practicable after noti-
fication. On review, the board may revoke the order or make a level 2 CTO (s 15).
A level 2 CTO may be made by the board based on the same criteria required
to be considered in the making of a level 1 CTO (s 16). Again, as with a level 1
CTO, consideration must be given to the person receiving treatment on a voluntary
basis.
A level 2 CTO may be made by the board:
• on a review of a level 1 CTO;
• on an application for revocation of a level 3 detention and treatment order;
• on an application made to the board whether or not a level 1 CTO is in place.
An application to the board for a level 2 CTO may be made by:

• the Public Advocate;
• an authorised medical practitioner;
• a mental health clinician;
• the guardian, medical agent, relative, carer or friend of the person who is the
subject of the application;
• any other person who the board is satisfied has a proper interest in the
patient’s welfare.
A level 2 CTO expires 6 months after it is made in relation to a child and 12

months in all other cases.
Where a level 2 CTO is made, treatment may be authorised by a psychiatrist or
authorised medical practitioner who has examined the patient despite the patient’s
refusal to, or absence of, consent. Where a level 2 CTO is in place, a treatment and
care plan must be made (s 40). The plan must detail the treatment to be provided
to the patient including rehabilitation and other services whether on an involuntary
basis or through the patient’s voluntary participation. As far as is practicable, the
patient’s guardian, medical agent, relative, carer or friend is to be consulted in pre-
paring and revising the treatment and care plan.
Detention and treatment orders

The making of a detention and treatment order (DTO) is the process by which
a person may be involuntarily detained and treated in a treatment centre. Three
levels of DTOs may be made. In each case the criteria for making an order is the
same:
• the person requires treatment for his or her own protection and the protection
of others from harm; and
• there is no less restrictive means of treatment other than detention and
treatment in an approved treatment centre.
378
In making or reviewing a DTO, irrespective of the level of the order being made
or reviewed, consideration must be given as to whether the treatment is able to be
given on a voluntary basis or by compliance with a CTO. As well, if a person refused
or failed to comply with a CTO may be a relevant consideration in making a DTO
(s 20).
The three levels of DTOs able to be made under the Act are summarised as
follows:
1) A level 1 DTO may be made by a medical practitioner or an authorised
health professional who, having examined the person, is of the opinion that
the person fulfills the criteria for admission as an involuntary patient (as
described above) and may order that the person be detained and treated as
an involuntary patient. A level 1 DTO is valid for 7 days. The patient must
then be examined by a psychiatrist or an authorised medical practitioner
(though not the person who made the initial order) within 24 hours of the
order being made, or as soon as practicable. Following that examination,
the psychiatrist or authorised medical practitioner may confirm or revoke
the level 1 DTO or substitute it with a CTO (s 21).
2) Where a level 1 DTO is made or confirmed by a psychiatrist or an
authorised medical practitioner, they may, after a further examination of the
patient and before the level 1 order expires, make a further order, known as
a level 2 DTO. A level 2 DTO expires after 42 days. During that time the
psychiatrist or authorised medical practitioner may revoke the level 2 DTO
at any time and may substitute it with a CTO (s 25).
3) A level 3 DTO is made by the board. In making the order, the board must
be satisfied that the person fulfills the criteria for admission as an
involuntary patient (as described above). The board may make an order even
though a level 2 or level 3 DTO already applies to the person. An
application for a level 3 DTO may be made by the Public Advocate, the
director of an approved treatment centre or an employee of an approved
treatment centre authorised to do so. The board may revoke or vary a level
3 DTO at any time. If it revokes a level 3 DTO it may substitute it with a
level 2 CTO. An application to revoke or vary a level 3 DTO may be made
by the Public Advocate, a medical practitioner, a mental health clinician,
guardian, medical agent, relative, carer or friend of the patient, or any other
person who the board is satisfied has a proper interest in the patient’s
wellbeing. A level 3 DTO expires 6 months after it is made with respect to
a child and 12 months for all other persons (s 29).
Where a patient is detained pursuant to a level 1, level 2 or level 3 DTO, he or
she may be given treatment authorised by a medical practitioner without consent.
Where a patient is being detained and treated on a level 2 or level 3 DTO, a treat-
ment and care plan must be in place (s 41). The treatment plan must describe the
treatment and care to be given including rehabilitation and other services on dis-
charge. As far as is practicable, the patient should be consulted in the preparation
and revision of a treatment and care plan as well as the patient’s guardian, medical
agent, relative, carer or friend of the patient.
379
GUARDIANSHIP BOARD
The Guardianship Board set up under the Guardianship and Administration Act
1993 is charged with the responsibility of being the legal guardian of persons under
its own Act as well as its responsibilities under the provisions of the Mental Health
Act 2009. In carrying out that latter role, the Guardianship Board is given power
to make decisions about the review of detention orders, care, treatment, education
and other matters relating to people with a mental illness.
The provisions for the setting up, the composition, the procedural powers and
the powers of the board in relation to its guardianship role are all set out in the
Guardianship and Administration Act. However, the role of the board in making and
reviewing community treatment orders and detention and treatment orders for
persons with a mental illness are set out in Part 11 of the Mental Health Act, specifi-
cally sections 79 to 85.
As provided in section 79 of the Act, the board must review community treat-
ment orders and detention and treatment orders made, specifically level 1 and level
2 CTOs and level 1 and level 3 DTOs. In carrying out its role, the board may
conduct any review it considers appropriate and in any manner it considers
appropriate.
In completing a review, the board must revoke any order if it is not satisfied there
are proper grounds for it to remain (s 80). In reviewing orders the board may affirm,
vary or revoke an order or make an order not being a DTO if the board considers
it should be made in relation to the person including a treatment and care plan.
The Act allows for electroconvulsive therapy (ECT) to be undertaken in accor-
dance with the criteria set out in section 42, as follows:
• the patient has a mental illness; and
• ECT or a course of ECT has been authorised by a psychiatrist who has
examined the patient; and
• written consent is given by the patient or on behalf of the patient, or if the
patient is under 16 years of age, by the board on the application of a mental
health practitioner or medical practitioner.
Any consent that is given is limited to a maximum of 12 doses of ECT given
over a maximum period of 3 months. Any subsequent course of ECT requires a
further written consent.
ECT may be given without consent if it is considered to be urgently required for
the patient’s wellbeing and it is not practicable to obtain consent. If that occurs,
the Chief Psychiatrist must be notified within one business day of the administra-
tion of the ECT. A failure to do that is considered an offence subject to a maximum
penalty of $50 000 or 4 years’ imprisonment.
Neurosurgery
Neurosurgery is defined in section 3 of the Act as a leucotomy, amygdaloidotomy,
hypothalomotomy, temporal lobectomy, cingulectomy, electrode implantation
in the brain or any other brain surgery for the relief of mental illness by the
380
elimination or stimulation of apparently normal brain tissues. Such surgery is per-

mitted (s 43) where:
• the patient has a mental illness; and
• the neurosurgery is authorised as treatment by the person who is to carry out
the procedure and by two psychiatrists who have each separately examined the
patient; and
• if the patient is capable of giving effective consent, he or she has given written
consent; or
• if the patient is over 16 years of age and effective written consent has been
given by the patient; or
• if the patient is not capable of giving effective consent, by the board on
application by a medical practitioner or mental health clinician.
A failure to abide by the provisions of the Act is considered an offence with a

maximum penalty of $50 000 or 4 years’ imprisonment.
Section 44 provides that ‘other prescribed psychiatric treatments’ (other than
ECT or neurosurgery) that may be undertaken are to be provided for in the Regula-
tions that accompany the Act.
Those objectives and principles of the Act already detailed above are reinforced by
the mandatory requirement that all patients be given a written statement of his or
her rights under the Act and that a copy also be given to the patient’s guardian,
medical agent, relative, carer or friend. (See, for example, s 9 on voluntary patients,
s 12 on level 1 CTOs, s 23 on level 1 DTOs and s 27 on level 2 DTOs where the
requirement for a written statement of rights to be given is prescribed.) If a patient
is illiterate, or too disturbed to read and comprehend the statement, steps must be
taken as may be practicable in the circumstances to convey the information con-
tained in the statement to the patient.
Additionally, patients must, as far as is practicable, be consulted in the prepara-
tion and revision of his or her treatment and care plan as well as the patient’s guard-
ian, medical agent, relative, carer or friend.
The rights of patients and the protection afforded to them under the Act are
further reinforced in Part 8 Division 1 (ss 45–49). Those sections:
• require an interpreter to be provided where a person being examined cannot
communicate adequately in English (s 45);
• require copies of board decisions or orders relating to the patient be given to
him or her (as well as the patient’s guardian etc) including a statement of the
patient’s legal rights (s 46);
• reaffirm a patient’s right to have another person for support wherever
practicable (s 47);
• prescribe a patient’s right to communicate with persons outside a treatment
centre, to receive visitors and be afforded reasonable privacy in communicating
with others (s 48);
381
• prescribe that any ill treatment or wilful neglect of a patient by a person

having care and control of the person is an offence with a maximum penalty
of $25 000 or 2 years’ imprisonment (s 49).
Part 2 Division 3 of the Guardianship and Administration Act 1993 (ss 18–24)
creates the office of Public Advocate. That position has a general and wide-ranging
overseeing and advocacy role in relation to mentally incapacitated persons. Because
of the definition of ‘mental incapacity’ in the Guardianship and Administration Act,
that would include a significant number of mentally ill people.
COMMUNITY VISITORS
Part 8 Division 2 (ss 50–54), which established this scheme, commenced in June
2011. The governor appoints the positions of the principal community visitor and
community visitors.
The functions of community visitors are to:
• conduct visits to, and inspect, treatment centres — every month, two or more
community visitors must conduct such visits (s 52); and
• refer matters of concern relating to the delivery of mental health services or the
care and control of patients to the minister, Chief Psychiatrist or other
appropriate body (s 51); and
• act as advocates for patients to assist in the resolution of issues relating to their
care and treatment (s 51); and
• any other functions assigned by the Act (s 51).
In visiting treatment centres, community visitors must, as far as practicable,

inspect all parts of the centre and make inquiries about care, treatment and control
of patients being detained or treated. Following such inspections, a report must be
made to the principal community visitor.
Community visitors may visit treatment centres at any time of the day or night,
with or without notice (s 52). A visit may be requested by a patient or by the
patient’s guardian, medical agent, relative, carer or friend who may also wish to
speak to a community visitor (s 53).
The principal community visitor is required to report to the minister on or
before 30 September each year and the report must be tabled in Parliament
(s 54).
APPEAL RIGHTS
There is a right of appeal to the Guardianship Board if there is dissatisfaction with
a CTO or a DTO (s 81). The board may dismiss, affirm, vary or revoke the order.
While awaiting appeal the order continues to operate (s 82). Persons appealing to
the board are entitled to legal representation (s 84).
Decisions of the Guardianship Board may be reviewed by way of appeal to the
Administrative and Disciplinary Division of the District Court and then to the
Supreme Court of South Australia (Part 11 Division 2 ss 81–85).
382
Tasmania: Mental Health Act 1996

The Mental Health Act 1996 is under review. Section 6 states the objects of the Act
as being:
a) with mental illnesses in accordance with the best possible standards while
at the same time safeguarding and maintaining their civil rights and
identity; and
b) to ensure that involuntary patients, forensic patients and persons subject
to supervision orders or community treatment orders who have mental
illnesses are provided with appropriate information about their statutory
and other rights; and
c) to provide for the making and review of orders for the involuntary
admission, treatment and detention of involuntary patients with mental
illnesses; and
ca) to provide for the authorising of medical treatment by the Forensic
Tribunal; and
d) to provide for the monitoring and review of the mental health system; and
e) to ensure that the services provided for persons with mental illnesses are
equitable, comprehensive, coordinated, accessible and free from stigma
and in particular to ensure that standards of care and treatment for those
persons are at least equal to the standards of care and treatment for
physical illnesses and disabilities; and
f ) to promote recognition in the community of the right of persons with
mental illnesses to the best possible standards of care and treatment; and
g) to ensure that all practicable measures are taken to prevent mental illness
or to arrest or impede its progress at an early stage; and
h) to reduce the adverse effects of mental illness on family life; and
i) to encourage and contribute to the highest possible standards of –
i) care and treatment for persons with mental illnesses; and
ii) research into the causes of, and treatment for, mental illnesses; and
j) to encourage the care and treatment of persons with mental illnesses in
the community and to design and coordinate an integrated system of
community support services for persons with mental illnesses who are
being cared for in the community; and
k) to ensure that, in relation to patients, all appropriate measures are taken
to protect the safety of the patients and other persons.
DEFINITIONS
Section 3 of the Act contains relevant definitions, however, section 4 defines ‘mental
illness’ as follows:
1) A mental illness is a mental condition resulting in –
a) serious distortion of perception or thought; or
b) serious impairment or disturbance of the capacity for rational thought; or
c) serious mood disorder; or
d) involuntary behaviour or serious impairment of the capacity to control
behaviour.
383
2) A diagnosis of mental illness may not be based solely on –

a) antisocial behaviour; or
b) intellectual or behavioural nonconformity; or
c) intellectual disability; or
d) intoxication by reason of alcohol or a drug.
The care of persons who do not have a mental illness as defined above but who
have a ‘disability’ comes under the Guardianship and Administration Act 1995 (Tas)
and specifically the Guardianship and Administration Board. A person with a dis-
ability may have a mental illness. Where that occurs the Mental Health Act takes
precedence but where consent is required for treatment under the Mental Health
Act for a person under guardianship, the person’s guardian must give consent on
the person’s behalf. For some people that will be the Guardianship and Administra-
tion Board.
For the purposes of the Act, an approved hospital is defined in section 3 as:
… a hospital or part of a hospital approved by the Minister for the care and
treatment of involuntary patients with mental illnesses.
ADMISSION TO AND DETENTION IN AN APPROVED HOSPITAL

Voluntary admission
The Act makes specific provision for persons to be voluntarily admitted to an
approved psychiatric hospital on the basis of his or her mental illness. Section 19
provides:
A person is a voluntary patient if at the time of admission –
a) the person is of or over the age of 14 years and is admitted to an
approved hospital with his or her consent; or
b) the person –
i) is under the age of 14 years; and
ii) is admitted to an approved hospital with the consent of his or her
parent; and
iii) does not resist admission to the approved hospital.
A medical practitioner at an approved hospital may refuse a request for voluntary
admission. If that occurs, reasons must be given as to why the admission is refused
and advice must be given to the person regarding alternative sources of treatment
(s 20). A second opinion may be requested by the person seeking admission if the
initial request is refused (s 21).
A voluntary patient may discharge himself or herself from an approved hospital
subject to the provisions of section 23 (s 22). Where a voluntary patient seeks dis-
charge from an approved hospital, a medical practitioner or an approved nurse may
take the person into protective custody and detain the person for assessment as to
whether the person should be detained as an involuntary patient. The person can
be held for 4 hours for the examination to take place. If no order for involuntary
detention is made in that time, the person must be released (s 23).
384
In section 24 the criteria for detaining a person in an approved hospital as an
involuntary patient are that:
a) the person appears to have a mental illness; and
b) there is, in consequence, a significant risk of harm to the person or
others; and
c) the detention of the person as an involuntary patient is necessary to
protect the person or others; and
d) the approved hospital is properly equipped and staffed for the care or
treatment of the person.
An application for the involuntary admission and detention of a person as an
involuntary patient may be made by an authorised officer or the person responsible
for the patient (s 25). An authorised officer includes a police sergeant or a police
officer in charge of police stations. The phrase ‘person responsible’ is defined in
section 5 as follows:
1) In this Act, person responsible for another person means –
a) where the other person is under 18 years and has a spouse, the spouse; or
b) where the other person is under 18 years and has no spouse, his or her
parent; or
c) where the other person is of or over the age of 18 years, one of the
following persons in order of priority:
i) his or her guardian;
ii) his or her spouse;
iii) the person having the care of the other person;
iv) a close friend or relative of the other person.
Initial assessment
Police officers or authorised persons may, under section 15, take a person into
protective custody for assessment if they consider on reasonable grounds that:
• there is, in consequence, a serious risk of harm to the person or to others.
To take a person into protective custody, an authorised officer may enter premises
without a warrant. Police assistance may be requested and reasonable force may be
used to take the person into protective custody (s 15). Where that occurs, the person
must be taken to an assessment centre (generally an authorised hospital) as soon as
possible. The assessment centre must be notified within 2 hours of the person being
taken into custody. Once at the assessment centre the person may be detained for
4 hours for assessment. If assessment is not done within that time, the person is to
be discharged (s 16).
Admission to an approved hospital after assessment
Any person may be admitted as a patient to an approved hospital if over the age
of 14 years with the consent of the person, or under an initial order, a community
385
care order or authorisation for temporary admission (s 17). Voluntary admission is

to be preferred to involuntary admission wherever possible (s 18).
A medical practitioner, who is satisfied that the criteria for the detention of a
person as an involuntary patient are met (as defined under s 24 above), may make
an initial order for the admission and detention of that person as an involuntary
patient in an approved hospital (s 26).
An initial order to detain a person must be confirmed by a second approved
medical practitioner within 24 hours or it ceases to have effect (s 27). Alternatively
a community treatment order or continuing care order (CCO) must be made within
72 hours of the initial order or the initial order becomes ineffective (s 27).
Continuing care order

To continue to detain a person as an involuntary patient after the initial order is
made, a continuing care order (CCO) must be made (s 28). Any such order must be
signed by two medical practitioners, one of whom is an approved medical practitio-
ner, who have each personally examined the patient and are satisfied that the criteria
for detention as an involuntary patient are met. The medical practitioner who made
the initial order may not sign the CCO. The CCO is required to include a statement
confirming the matters set out in section 24 detailed above; that is, that the person
is mentally ill and poses a risk of harm to himself or herself or to others (s 28).
If the patient is not in the hospital in which he or she is to be detained under
the CCO, an authorised officer may take the person to the other hospital (s 28).
Section 29 sets out the conditions of a CCO and how it may be renewed and
the circumstances in which it ceases to have effect in the following terms:
1) A continuing care order operates for a term, not exceeding 6 months,
stated in the order but may be renewed from time to time by 2 approved
medical practitioners who have each separately examined the patient,
within a month before the end of the period for which the order was
made or last renewed, and have satisfied themselves that the criteria for
detention as an involuntary patient in an approved hospital continue to
be met.
2) A continuing care order ceases to have effect if –
a) the senior approved medical practitioner of the approved hospital in
which the patient is detained discharges the order; or
b) the Mental Health Tribunal, on review of the order, discharges the order;
or
c) a community treatment order for the patient is made; or
d) the order is not renewed or further renewed at the end of the term for
which the order was made or last renewed; or.
e) the patient becomes a forensic patient.
The Mental Health Tribunal is required to be notified in writing within 48 hours
of a person’s admission to an approved hospital under a CCO. That notification is
required to be updated on a weekly basis providing details of the discharge or
transfer of involuntary patients during the previous week (s 70).
386
Community treatment order

As the name implies, a community treatment order (CTO) may be made to
allow for a person with a mental illness to be treated in the community instead of
in an approved hospital. Section 40 sets out the criteria for making a CTO as
follows:
A community treatment order may be made for the treatment of a person only
if –
a) the person has a mental illness; and
b) there is, in consequence, a significant risk of harm to the person or
others unless the mental illness is treated; and
c) the order is necessary to ensure that the illness is properly treated; and
d) facilities or services are available for the care and treatment of the person.
A CTO may be made by two approved medical practitioners who have each
separately and within the previous 7 days examined the patient (s 41).
A CTO must specify the requirements of section 42. The requirements of a
patient under a CTO are expressed in section 43; that is, that a CTO may:
• require the patient to take or submit to the administration of medical
treatment as specified by the order or as decided by a medical practitioner
nominated in the order; or
• require the patient to attend as an outpatient at a nominated treatment centre
at specified intervals or as directed by a medical practitioner nominated in the
order; or
• require the patient to comply with other requirements specified in the order or
to be specified by a person nominated in the order.
A CTO may remain in force for a period not exceeding 12 months (s 44(1)). It
may be renewed from time to time by two approved medical practitioners who,
within a month before the end of the term for which the order was granted or last
renewed, have each separately examined the patient (s 44(2)).
If a person under a CTO is admitted as a voluntary patient to an approved
hospital, the CTO is suspended until the person is discharged and then revived
(s 44(3)). Likewise, if a person under a CTO is admitted as an involuntary
patient, either for temporary admission or otherwise, the CTO is suspended until
the patient is discharged. It is then reactivated unless it has ceased to have effect as
provided (s 44(3A) and (3B)). Obviously, while suspended, a CTO has no effect
(s 44(3C)).
As provided by section 44(4), a CTO ceases to have effect if:
• one of the approved medical practitioners who made the order discharges the
order; or
• the Mental Health Tribunal, on review of the order, discharges the order; or
• the community treatment order is not renewed, or further renewed, at the end
of the term for which the order was made or last renewed; or
• the patient remains in an approved hospital as a patient for 3 months; or
387
• the authorisation for temporary admission ends under section 44C(e) because
the person has been admitted to an approved hospital as an involuntary
patient in excess of 14 days.
Section 44A(1) allows an approved medical practitioner to authorise the tempo-
rary admission of a person to whom a CTO applies as an involuntary patient to an
approved hospital if the medical practitioner and either an authorised officer or a
person responsible are both satisfied that:
• the patient has failed to comply with the order; and
• all reasonable steps have been taken to obtain the cooperation of the patient in
complying with the order; and
• the health of the patient has deteriorated, or there is a significant risk that the
health of the patient will deteriorate, because of the patient’s failure to comply
with the order.
Once authorisation is given for temporary admission, it permits the person to be
detained in an approved hospital for a period not exceeding 14 days (s 44B). That
authority for temporary admission ends when, as provided in section 44C, one of
the following occurs:
• the approved medical practitioner who made the authorisation cancels it;
• the elapse of the period of 28 days commencing on the day on which the
authorisation is made, unless the patient is admitted to an approved hospital
on the authority of the authorisation within that period;
• after the patient is admitted to an approved hospital as an involuntary patient
on the authority of the authorisation, the patient is discharged from the
hospital by the medical practitioner who is in charge of his or her care and
treatment;
• after the patient is admitted to an approved hospital as an involuntary patient
on the authority of the authorisation, a continuing care order is made in
respect of the patient;
• the elapse of the period of 14 days commencing on the admission of the
patient to an approved hospital as an involuntary patient on the authority of
the authorisation;
• the community treatment order to which the authorisation relates ceases to
have effect under section 44(4)(a), (b) or (c);
• the tribunal, on review of the authorisation, discharges the authorisation.
THE ROLE OF THE MENTAL HEALTH TRIBUNAL

Section 48 of the Act provides for the setting up of the Mental Health Tribunal.
Section 48 and Schedule 1 of the Act deal with the appointment, composition and
chairpersonship of the tribunal.
Section 51 sets out the functions of the tribunal as follows:
• to review decisions and orders to admit persons as involuntary patients in
approved hospitals; and
388
• to carry out periodic reviews of the detention of involuntary patients in

approved hospitals; and
• to review the making of, and carry out periodic reviews of, CTOs; and
• to receive reports on the use of restraint, seclusion and the withholding of
information under section 45(3) and, if thought fit, to issue directions or
guidelines for regulating any such matters; and
• to review a decision to admit an involuntary patient to a secure mental health
unit under section 72B; and
• to carry out the other functions conferred on the tribunal under the Mental
Health Act or any other Act.
As well, section 52 provides that the Mental Health Tribunal must review:
• a CCO or a CTO within 28 days after the date when the order is made or
renewed;
• a transfer of an involuntary patient to Tasmania within 28 days after the date
on which the patient is transferred;
• the admission of an involuntary patient to a secure mental health unit under
section 72B within 3 days of the patient being admitted;
• in addition to the mandatory review required in all of the above matters, the
tribunal must review any order made on an application by the patient, a
person responsible for the patient or another person who has, in the opinion
of the tribunal, a proper interest in the patient’s welfare.
The powers of the tribunal under section 65 in undertaking a review of a

decision and authorisation for temporary admission, or order, are that the tribunal
may:
• confirm or vary the decision, authorisation or order, or revoke the decision,
authorisation or order and substitute a different decision, authorisation or
order; and
• give such directions as are necessary to ensure compliance with the tribunal’s
determination; and
• give other directions the tribunal considers necessary or desirable in the
interests of the person to whom the decision, authorisation or order relates
(s 65).
FORENSIC TRIBUNAL
The creation of the Forensic Tribunal was a result of amendments made to the Act
in 2005. The Forensic Tribunal is intended to deal with persons who come before
the courts having committed a criminal offence and who have an underlying mental
health pathology. That factor may well be crucial as to how such a person — gener-
ally known as a ‘forensic patient’ — will be dealt with by the courts. Under the
Act, a forensic patient is a person who has been admitted to a secure mental health
unit and who has not been discharged from such a unit.
389

Care and treatment orders
The provisions that apply to the making of an initial order, community care
orders and community treatment orders have been detailed earlier in this section.
Medical treatment
There is no definition as to what constitutes ‘medical treatment’ in the Act.
Section 31 allows medical treatment to be administered to a patient with the
patient’s informed consent, or, where necessary, the authority of the Guardianship
and Administration Board. There are, however, some limitations placed on what
constitutes medical treatment, in that section 32 states that medical treatment does
not include sterilisation, termination of pregnancy or removal of non-regenerative
tissue for transplantation. Section 32 also provides for the Guardianship and Admin-
istration Board to consent to medical treatment on behalf of a patient who is unable
or unwilling to consent and requires the treatment for his or her mental illness. As
well, section 32 provides that medical treatment may be given notwithstanding the
patient’s inability or refusal to consent.
The meaning of ‘informed consent’ for the purposes of the Act is defined in
section 5AA as follows:
1) A person is taken to have given informed consent to proposed medical
treatment if, and only if, the following requirements are satisfied:
a) the person is, in the opinion of the medical practitioner who is respon-
sible for administering the proposed treatment, mentally capable of
understanding the general nature and effect of the proposed treatment;
b) the person, after being given the information required under subsection
(2), freely and voluntarily consents to the proposed treatment;
c) the person has not withdrawn the consent.
2) The medical practitioner who is responsible for the administration of
medical treatment to a person must give the person whose consent to
medical treatment is sought:
a) a clear explanation of the proposed treatment; and
b) a description, without concealment or distortion, of the benefits and
disadvantages of the treatment, including a statement of the risk of
adverse consequences; and
c) a description of alternative forms of treatment that may be available
and their benefits and disadvantages; and
d) clear answers to questions asked by the person; and
e) a reasonable opportunity to obtain independent medical or other advice.
Electroconvulsive therapy (ECT) and psychosurgery

No specific reference or regulation is included in the Tasmanian Act to ECT
or psychosurgery. As it is not a medical treatment excluded by section 32, the
patient or the board could authorise such treatment subject to the provisions of that
section.
390
Physical restraint
Physical restraint may be applied only if the restraint (s 34):
• is necessary:
– for medical treatment of the patient; or
– to prevent injury to the patient or to others; or
– to prevent the patient from persistently destroying property; and
• is authorised by a medical practitioner or an approved psychiatric nurse for a
period of less than 4 hours; and
• is applied for no longer than authorised or if the restraint is in accordance
with guidelines issued by the tribunal.
Seclusion
Seclusion is permissible only if (s 35):
• the seclusion is necessary for the protection of the patient or other persons
with whom the patient would otherwise be in contact; and
• the seclusion is authorised by a medical practitioner or an approved psychiatric
nurse; and
• the patient is kept in seclusion for no longer than authorised.
Where a patient is kept in seclusion, he or she must (s 35):

• be visited by a member of the nursing staff at intervals of no more than 15
minutes or in accordance with guidelines issued by the Mental Health
Tribunal; and
• be examined at intervals of no more than 4 hours by a medical practitioner;
and
• be provided with bedding and clothing that is appropriate in the
circumstances; and
• be provided with food and drink at the appropriate times; and
• have access to adequate toilet arrangements.
Monthly reports must be submitted to the tribunal where seclusion or restraint

is administered to an involuntary patient in an approved hospital (s 36).
PATIENT RIGHTS AND THE ROLE OF OFFICIAL VISITORS UNDER THE ACT
Section 45 of the Act requires involuntary patients to be given a statement of their
legal rights as well as information about advocacy services and grievance procedures.
A copy of such a document must also be given to the patient’s nominated ‘person
responsible’.
OFFICIAL VISITORS
The Act provides for the appointment of official visitors who are required to visit
approved hospitals at least once a month.
391
The functions of the official visitor are (s 75):

• to examine the adequacy of services for the assessment and treatment of
mental illnesses;
• to examine the appropriateness and standard of the facilities for the
accommodation, assessment, care and treatment of persons with a mental
illness;
• to examine the facilities for the recreation, occupation, education, training and
rehabilitation of persons receiving care or treatment for mental illness;
• to investigate any suspected contravention of the Act in the care or treatment
of persons with a mental illness, particularly unnecessary bodily restraint,
seclusion or other restriction on freedom;
• to visit patients and assess the adequacy of their care and treatment; and
• to investigate complaints made by persons receiving care or treatment.
Section 79 of the Act requires that an official visitor must report to the Mental
Health Tribunal or the Forensic Tribunal if he or she suspects on reasonable grounds
a contravention of the Act in relation to the care or treatment of a patient with a
mental illness.
Victoria: Mental Health Act 1986

PROPOSED NEW MENTAL HEALTH ACT FOR VICTORIA
In 2010, the then Victorian Government released a document titled ‘Exposure Draft
Mental Health Bill 2010: Explanatory Guide’.12 That document sets out what were
intended to be the main features of a new Mental Health Act for Victoria. The
purpose of the Exposure Draft was to elicit feedback from stakeholders and the
community about a proposed new Mental Health Act. The intention was that, after
considering the feedback from the Exposure Draft Bill, the government would
introduce a new Mental Health Bill into Parliament in 2011 which, once passed
by Parliament and proclaimed, would commence as an Act in mid 2012. All of the
proposed timelines were stated to be ‘subject to the outcome of the November 2010
Victorian election’.
That election saw a change of government in Victoria. As a result, the proposed
timeline for the proposed new Mental Health Act for Victoria has been considerably
delayed. At the time of writing it is unclear as to when a new Mental Health Act
for Victoria will be finalised. Until any new Act is proclaimed, the Mental Health
Act 1986 (as amended from time to time) will continue to operate as the relevant
mental health legislation in Victoria.
Mental Health Act 1986

DEFINITIONS
A definition of mental illness was introduced into section 8 of the Act in 1995 and
provides that a person is mentally ill if he or she has a mental illness ‘being a medical
condition that is characterised by a significant disturbance of thought, mood, per-
ception or memory’ (s 8(1A)).
392
In Victoria a mental disorder includes mental illness (s 3). Like New South Wales,
the Victorian mental health legislation seeks to exclude persons with intellectual
disabilities from the provisions of the Mental Health Act.
There is currently no specific provision in the Act for voluntary mentally ill
persons. Section 8(1) provides the following criteria for the involuntary treatment
of a person:
a) the person appears to be mentally ill; and
b) the person’s mental illness requires immediate treatment and that
treatment can be obtained by the person being subject to an involuntary
treatment order; and
c) because of the person’s mental illness, involuntary treatment of the person
is necessary for his or her health or safety (whether to prevent a
deterioration in the person’s physical or mental condition or otherwise) or
for the protection of members of the public; and
d) the person has refused or is unable to consent to the necessary treatment
for the mental illness; and
e) the person cannot receive adequate treatment for the mental illness in a
manner less restrictive of his or her freedom of decision and action.
[emphasis added]
In relation to paragraph (d) above where the ‘person has refused or is unable to
consent’ to treatment, it is important to bear in mind that it is only the ‘person’s’
refusal or inability to consent that is relevant here — not that of the person’s legal
guardian or person responsible under the Guardianship and Administration Act 1986
(Vic) or agent under the Medical Treatment Act 1988 (Vic) (s 3A).
The Mental Health Act also makes provision similar to that of the New South
Wales Act for conduct which is not to be considered to be mentally ill; section 8(2)
and (3) set out as follows:
2) A person is not to be considered to be mentally ill by reason only for any
one or more of the following—
a) that the person expresses or refuses or fails to express a particular
political opinion or belief;
b) that the person expresses or refuses or fails to express a particular
religious opinion or belief;
c) that the person expresses or refuses or fails to express a particular
philosophy;
d) that the person expresses or refuses or fails to express a particular
sexual preference or sexual orientation;
e) that the person engages in or refuses or fails to engage in a particular
political activity;
f ) that the person engages in or refuses or fails to engage in a particular
religious activity;
g) that the person engages in sexual promiscuity;
h) that the person engages in immoral conduct;
393
i) that the person engages in illegal conduct;

j) that the person is intellectually disabled;
k) that the person takes drugs or alcohol;
l) that the person has an antisocial personality;
m) that the person has a particular economic or social status or is a
member of a particular cultural or racial group.
3) Subsection (2)(k) does not prevent the serious temporary or permanent
physiological, biochemical or psychological effects of drug or alcohol
taking from being regarded as an indication that a person is mentally ill.
ADMISSION TO AND DETENTION IN AN APPROVED MENTAL HEALTH SERVICE

The Act makes provision in section 94 for any premises or service where, or through
which, treatment is to be provided to be declared an approved mental health service.
VOLUNTARY ADMISSIONS OR TREATMENT

Unlike New South Wales, the Victorian Act makes no provision for voluntary
admission or treatment.
INVOLUNTARY ADMISSION OR TREATMENT

The Act emphasises a request or recommendation for involuntary treatment (s 9),
the process of which applies to a person who may receive treatment in the com-
munity or while detained in approved mental health services.
A request for involuntary treatment must be made in a prescribed form and may
be made by a relative or friend who believes, in the best interests of the person, that
he or she should receive treatment for a mental illness. The request must be accom-
panied by a recommendation made by a medical practitioner who is satisfied that
the person meets one of the criteria specified in section 8(1) of the Act and that an
involuntary treatment order (ITO) should be made (s 9(3)). A medical practitioner
who makes such a recommendation must satisfy the provisions of section 123 as to
the facts upon which he or she relies in making the recommendation:
1) A registered medical practitioner who signs any recommendation or
certificate in connection with the making of an involuntary treatment order
or the admission of any person to an approved mental health service must—
a) specify the facts upon which the opinion that the person to whom the
recommendation or certificate relates is mentally ill is based; and
b) distinguish the facts personally observed from—
i) facts not personally observed; and
ii) facts communicated to the medical practitioner by any other person.
2) A person may be made subject to an involuntary treatment order or be
admitted to an approved mental health service on a recommendation or
certificate which relies upon facts not personally observed by the medical
practitioner if the medical practitioner—
a) has reasonable grounds for relying on those facts; and
b) has—
394
i) personally observed some fact which supports the recommendation

or certificate; or
ii) relied upon facts personally observed by another medical practitio-
ner within 28 days of the recommendation or certificate and
communicated directly by that medical practitioner to the medical
practitioner signing the recommendation or certificate.
3) If the medical practitioner signing the recommendation or certificate has
relied upon the facts of the kind specified in subsection (2)(b)(ii) the
recommendation or certificate must specify the name and address of the
other medical practitioner. [emphasis added]
Once the request for admission has been received together with the recommenda-
tion by a medical practitioner as set out, a police officer, ambulance officer or any
other person is then authorised to take the patient to an approved mental health
service. If it is necessary to do so ‘such assistance as is required and such force as
may be reasonably necessary’ is able to be used to enter any premises and take the
patient to an approved mental health service (s 9B(2)(a)). In addition, such restraint
as may be considered necessary and sedation as may be necessary to enable a person
to be taken safely to an approved mental health service may be used and adminis-
tered (s 9B(2)(b) and (3)).
As is the case in the New South Wales Act, a member of the police force may
apprehend and detain a person for examination by a medical practitioner if the
person has attempted suicide or caused serious harm to another person, himself or
herself, or is likely to do so, or if the person appears mentally ill. As well, a magistrate
may, on information received, order the apprehension of a person for the purposes
of detention and examination by a registered medical practitioner. Following exami-
nation and assessment by a medical practitioner the person may be transported to
an approved mental health service or released (ss 10 and 11).
The relevant provisions applying to the making of an involuntary treatment order
to enable a person to receive treatment in the community or in an approved mental
health service are found in sections 12–12D inclusive and may be summarised as
follows:
1) The making of an involuntary treatment order for persons in the community
must be made by a registered medical practitioner in the prescribed form
(s 12).
2) If such an order is made, it is sufficient authority to admit and detain a
person in an approved mental health service until the person is examined by
an authorised psychiatrist (s 12).
3) Once a person has been taken to an approved mental health service, a further
involuntary treatment order is required to be made by a registered medical
practitioner employed by an approved mental health service (s 12AA). That
order is sufficient to detain the person until examined by an authorised
psychiatrist. Interim medical treatment may be given immediately pursuant
to such an order without the person’s consent if considered to be in the
person’s best interests (s 12AB).
395
4) Once an involuntary treatment order is made, the person must be examined

by an authorised psychiatrist, generally as soon as practicable or within 24
hours after the order is made (s 12AC).
5) If the authorised psychiatrist confirms the involuntary treatment order, he or
she may make a community treatment order or detain the person in an
approved mental health service (s 12AC) as an involuntary patient.
6) Once detained, an involuntary patient is to be given treatment for his or her
mental illness. If consent is refused or unable to be given, the authorised
psychiatrist may consent on the patient’s behalf (s 12AD).
7) Once a person becomes an involuntary patient, any guardian of the person is
to be notified (s 12AE).
8) An authorised psychiatrist may apply to the Chief Psychiatrist to continue
the detention and treatment of an involuntary patient for a period not
exceeding 3 months (s 12A).
9) Once an application is made pursuant to section 12A, two other qualified
psychiatrists must examine the person and support the need for continued
detention and treatment (s 12B) for a period specified but not exceeding
3 months.
10) If they are not satisfied and refuse to consent, the authorised psychiatrist
must discharge the involuntary patient (s 12C).
11) A person may be detained for an unlimited period on the basis that such
detention and treatment is renewed every 3 months (s 12C).
12) An involuntary treatment order may be made if a person requires life-
sustaining or emergency treatment in a general hospital (s 13).
The continued detention of an involuntary patient must be reviewed by the

Mental Health Review Board in accordance with the provisions of section 30 of the
Act which states that the board must conduct a review of an involuntary treatment
or security order within 8 weeks after the order is made and thereafter at intervals
not exceeding 12 months.
It is appropriate at this point to mention the role, function and procedure of the
Victorian Mental Health Review Board.
MENTAL HEALTH REVIEW BOARD

The Victorian Mental Health Review Board was established under the Mental
Health Act 1986. The composition of and certain procedural provisions relating to
the board and its sittings are to be found in Schedules 1 and 2 of the Act. The
functions of the board are set out in section 22 as follows:
1) The functions of the Board are as follows—
a) to hear appeals by or on behalf of involuntary patients and security
patients;
b) to review periodically the orders made for involuntary patients and
security patients and their treatment plans;
c) to hear appeals against the refusal of the Chief Psychiatrist to grant
special leave to security patients;
396
ca) to hear appeals against the transfer of involuntary patients and

security patients;
d) to review orders for the transfer of involuntary patients to interstate
mental health facilities; [there are no paragraphs (e) and (f )]
g) such other functions as are specified in this Act.
2) The Board must in determining any review or appeal have regard
primarily to the patient’s current mental condition and consider the
patient’s medical and psychiatric history and social circumstances.
3) In the case of a review or an appeal of a restricted involuntary treatment
order or restricted community treatment order, the Board must, in
addition to the matters in subsection (2), consider the patient’s forensic
history.
Like its counterpart in New South Wales, the Victorian Mental Health Review
Board attempts a degree of informality in its hearings whilst at the same time acting
according to ‘equity and good conscience’ and ‘the rules of natural justice’. It is not
bound by the rules or practice as to evidence. Evidence may be given orally or in
writing or partly as to both and may be given under oath, by affirmation or by
declaration (s 24).
Similar provisions as to legal representation, provision of an interpreter and
appearance before the board as provided under the New South Wales Act appear
in the Victorian Act (ss 25 and 26).
Appeals to the Mental Health Review Board may be made at any time ‘against
the detention of a person as an involuntary patient or a security patient’ (s 29). The
persons who may make such appeals are:
• an involuntary patient;
• a community visitor;
• any person who satisfies the board that he or she has a genuine concern for the
patient.
An involuntary patient may initiate an appeal by writing to:
• the executive officer;
• the Chief Psychiatrist;
• a community visitor;
• an authorised psychiatrist;
• the Ombudsman;
• the Health Services Commissioner.
The review of decisions of the board
Section 120(1) of the Act provides that ‘a person whose interests are affected by
a determination of the Board may apply to the Tribunal for review of the determi-
nation’. Reference to the tribunal in section 120 refers to the Victorian Civil and
Administrative Tribunal.
There is also provision in the Act for application to be made to the Supreme
Court of Victoria where a question of law arises in proceedings before the board.
397
That application may be made either by the board of its own motion or by any
person who is a party to the proceedings (s 118).

The Act provides for a community treatment order (CTO) to be made. A CTO is
defined in section 14(2) as follows:
A community treatment order is an order requiring the person to obtain
treatment for their mental illness while not detained in an approved mental
health service.
Once again the emphasis is on appropriate treatment within a community setting
rather than an institutional environment. A CTO may be made by an ‘authorised
psychiatrist’ (s 14(1)). In making a CTO the authorised psychiatrist, in accordance
with section 14(3):
• must specify the duration of the community treatment order which must not
exceed 12 months; and
• may specify where the patient is to live if this is necessary for the treatment of
the patient’s mental illness.
Sections 14A, 14B and 14C provide respectively for the monitoring, extension
and variation of CTOs.
Section 14D provides that an authorised psychiatrist may revoke a CTO if he or
she is satisfied on reasonable grounds that the person has failed to comply with the
order or is considered no longer suitable for a CTO. Once a CTO is revoked the
person is then deemed to be an involuntary patient absent from an approved mental
health service without leave (s 14D(3)). The authorised psychiatrist must make
reasonable efforts to inform the person that the order has been revoked and that
they must return to an approved mental health service. If they fail or refuse to do
so, the person can be apprehended by the police or ambulance service who are able
to use whatever force is reasonable and necessary to apprehend and convey the
patient to an approved mental health service.
If requested to review a CTO the Mental Health Review Board may vary, or
revoke, or discharge a person from, a CTO (ss 36–38 inclusive).

Sections 72–80 inclusive contain the provisions relating to ECT.
Under section 53B of the Act a person is deemed to have given informed consent
to ECT if that person gives consent in writing after complying with the following
conditions:
1) For the purposes of this Part (other than section 83(2)), a person is
to be taken to have given informed consent to the performance on him
or her of treatment only if the person gives written consent to that
treatment after—
a) the person has been given a clear explanation containing sufficient
information to enable him or her to make a balanced judgement; and
398
b) the person has been given an adequate description of benefits,

discomforts and risks without exaggeration or concealment; and
c) the person has been advised of any beneficial alternative treatments; and
d) any relevant questions asked by the person have been answered and the
answers have been understood by the person; and
e) a full disclosure has been made of any financial relationship between the
person seeking informed consent or the registered medical practitioner
who proposes to perform the treatment, or both, and the service, hospital
or clinic in which it is proposed to perform the treatment; and
f ) subsections (2) and (3) have been complied with.
2) The person on whom the treatment is to be performed must be given the
appropriate prescribed printed statement—
a) advising the person as to his or her legal rights and other entitlements including—
i) the right to obtain legal and medical advice (including a second
psychiatric opinion) and to be represented before giving consent; and
ii) the right to refuse or withdraw his or her consent and to discon-
tinue all or any part of the treatment at any time; and
b) containing any other information relating to the treatment that the
Department considers relevant.
3) In addition to the statement, the person must be given an oral
explanation of the information contained in the statement and, if he or
she appears not to have understood, or to be incapable of understanding,
the information contained in the statement, arrangements must be made
to convey the information to the person in the language, mode of
communication or terms which he or she is most likely to understand.
4) The statement may be printed in different languages so that, whenever
possible, a person can be given a copy of the statement in a language with
which he or she is familiar.
5) It is the duty of the authorised psychiatrist to ensure that this section is
complied with in the approved mental health service. [emphasis added]
It is important to note that the consent provided for under section 53B is the
consent of the person, not the person’s guardian, a person responsible, an agent or
the tribunal (s 3A).
Where a patient is incapable of giving consent to ECT

If a patient is incapable of giving informed consent to ECT it may still be per-
formed if the following provisions of section 73(3) and (4) are satisfied:
3) If a person who is a patient is incapable of giving informed consent the
electroconvulsive therapy may be performed if:
a) the authorised psychiatrist has authorised the electroconvulsive therapy
proposed to be performed after being satisfied that—
i) the electroconvulsive therapy has clinical merit and is appropriate;
and
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ii) having regard to any benefits, discomforts or risks the electrocon-

vulsive therapy should be performed; and
iii) any beneficial alternative treatments have been considered; and
iv) unless the electroconvulsive therapy is performed, the patient is
likely to suffer a significant deterioration in his or her physical or
mental condition; and
b) all reasonable efforts have been made to notify the patient’s guardian or
primary carer of the proposed performance of the electroconvulsive
therapy.
4) Informed consent is not necessary if the nature of the mental disorder
that a person has is such that the performance of the electroconvulsive
therapy is urgently needed. [emphasis added]
If ECT is undertaken on a person who has not given informed consent or does
not come within the provisions of subsections (3) and (4) as set out above, the
registered medical practitioner who performs the procedure is guilty of an offence
under the Act and guilty of professional misconduct (s 73(1) and (2)).
Psychosurgery
For the purposes of the Act ‘psychosurgery’ is defined in section 54(1) as follows:
a) any surgical technique or procedure by which one or more lesions are
created in a person’s brain on the same or on separate occasions primarily
for the purpose of altering the thoughts, emotions or behaviour of that
person; or
b) the use of intracerebral electrodes to create one or more lesions in a
person’s brain on the same or on separate occasions primarily for the
purpose of altering the thoughts, emotions or behaviour of that person; or
c) the use of intracerebral electrodes to cause stimulation through the
electrodes on the same or on separate occasions without creating a lesion
in the person’s brain for the purpose of influencing or altering the
thoughts, emotions or behaviour of that person. [emphasis added]
The Act also goes to some lengths to make it clear that, where reference to
‘behaviour’ is made in the definition of psychosurgery as set out above, it does not
include (s 54(2)):
i) behaviour manifested as part of generalised convulsive or non-convul-
sive epilepsy; or
ii) behaviour manifested as part of simple or complex partial epilepsy; or
iii) behaviour considered to be secondary to a paroxysmal cerebral dys-
rhythmia; or
iv) behaviour manifested as a result of a disorder of the basal ganglia; and
b) does include behaviour not considered to be secondary to cerebral
dysrhythmia. [emphasis added]
Section 53B(1) of the Act states that a person is deemed to have given informed
consent for psychosurgery if they give written consent to that treatment after:
400
a) the person has been given a clear explanation containing sufficient

information to enable him or her to make a balanced judgement; and
b) the person has been given an adequate description of benefits,
discomforts and risks without exaggeration or concealment; and
c) the person has been advised of any beneficial alternative treatments;
and
d) any relevant questions asked by the person have been answered and the
answers have been understood by the person; and
e) a full disclosure has been made of any financial relationship between the
person seeking informed consent or the registered medical practitioner
who proposes to perform the treatment, or both, and the service, hospital
or clinic in which it is proposed to perform the treatment; and
f ) subsections (2) and (3) have been complied with.
Subsections (2) and (3) require the person to be given a written statement as to
his or her legal rights including the right to withdraw consent at any time. As well,
if necessary, an oral explanation and written statement must be given in a language
with which he or she is familiar and is most likely to understand.
The constitution, membership and procedures of the Psychosurgery Review
Board are spelled out in Schedule 3 of the Act.
Consent must be obtained from the board before psychosurgery can be under-
taken (s 58(1)). Any medical practitioner who performs psychosurgery without first
having obtained the consent of the Psychosurgery Review Board is guilty of profes-
sional misconduct and guilty of an offence under the Act (s 57(2)).
Application to undertake psychosurgery has to be made to the board setting out
the details of the psychosurgery to be performed, the clinical indications for the
psychosurgery, the hospital in which the surgery is to be performed, and that the
patient is capable of giving informed consent or otherwise (s 58).
On receipt of the application to perform psychosurgery the Psychosurgery Review
Board must convene within 10 days of receiving the application and must then hear
the application within a further 21 days. Prior to hearing the application the board
must give at least 10 days’ notice to the following persons of their intention to hear
the application:
• the applicant;
• the person on whom the surgery is to be performed;
• the advocate of the person on whom the surgery is to be performed;
• the primary carer.
The above persons are to be given all of the relevant details as to the time and
place and nature of the proceedings as well as advising the person that they are
entitled to legal representation before the hearing (s 59).
In hearing the application the Psychosurgery Review Board is required to act
‘according to equity and good conscience’ without regard to technicalities or legal
forms. The board is not bound by the rules or practice as to evidence but may
inform itself in relation to any matter as it thinks fit. Evidence may be given either
401
orally or in writing or partly orally and partly in writing by oath, affirmation or

declaration (s 60).
In hearing the application the Psychosurgery Review Board is to be satisfied on
the following matters found in section 65:
• the person in respect of whom the application is made has the capacity to give
informed consent in accordance with the provisions of section 53B, earlier
detailed in relation to ECT;
• the person in respect of whom the application is made has in fact given
informed consent;
• the proposed psychosurgery has clinical merit and is appropriate;
• any person proposing to perform the psychosurgery is properly qualified;
• the service, hospital or clinic in which it is proposed to perform the
psychosurgery is an appropriate place;
• all other reasonable treatments have already been adequately and skilfully
administered without sufficient and lasting benefit;
• notice of the hearing has been given in accordance with section 59(2).
The board may either give consent to or refuse an application for psychosurgery
(s 64). In giving consent to psychosurgery the board must specify the following
matters as set out in section 66(1):
a) the name of the medical practitioner or medical practitioners authorised
to perform the psychosurgery;
b) the nature of the psychosurgery to be performed;
c) the service, hospital or clinic in which the psychosurgery is to be performed;
d) the period within which the psychosurgery is to be performed.
Non-psychiatric treatment
On occasions, a person with a mental disorder may require surgery or treatment
for a medical condition additional to the treatment being given for their mental
disorder; for example, appendicectomy, repair of a hernia or treatment and medica-
tion for diabetes or heart failure. The Act makes provision for ‘non-psychiatric
treatment’ defined in section 83 as follows:
a) any surgical operation or procedure or series of related surgical operations
or procedures; or
b) the administration of an anaesthetic for the purpose of medical
investigation; or
c) the administration of any course of treatment or course of medication
requiring a prescription or medical supervision …
The Act refers to ‘major non-psychiatric treatment’ and ‘not major non-psychi-
atric treatment’. What treatment falls into one of the two categories is not detailed
in the Act but left to the Chief Psychiatrist to determine by the publication of
written guidelines (s 83(1A)). In relation to non-major psychiatric treatment, the
402
patient may give consent voluntarily to treatment subject to being given a clear
explanation of the proposed treatment and the reasons for it (s 83(2)).
In relation to non-psychiatric care generally, where the patient is incapable of
giving informed consent to treatment and is over the age of 18 years, section 85(1)
provides that consent to treatment may be given by:
• a person appointed by the patient under the Medical Treatment Act 1988 (Vic);
or
• a person appointed by the tribunal; or
• a person appointed under a guardianship order or enduring guardianship
order; or
• an authorised psychiatrist.
Where the patient is under the age of 18 years, consent to treatment may be
given by:
• a parent; or
• a guardian; or
• an authorised psychiatrist; or
• a person appointed under the Children, Youth and Families Act 2005 (Vic).
Any person who performs non-psychiatric treatment on a patient without a

proper consent being obtained in accordance with the Act is guilty of an offence
against the Act. Further, any registered medical practitioner who performs
such treatment without proper consent is also guilty of professional misconduct
(s 84(2)).
Consent to undertake non-psychiatric treatment on a patient is not required if
it is necessary to save the patient’s life, prevent serious damage to the patient’s health,
or prevent the patient from suffering significant pain or distress (s 84(3)).
APPLICATION OF BODILY RESTRAINT AND SECLUSION

The Act makes specific reference to both of these forms of treatment. In the course
of caring for patients where restraint and seclusion may be used, specific reference
is made to the obligations imposed on registered nurses involved in such
procedures.
Mechanical means of bodily restraint

Section 81 of the Act provides as follows:
1) Mechanical restraint of a person receiving treatment for a mental
disorder in an approved mental health service can only be applied—
a) if that restraint is necessary—
i) for the purpose of the medical treatment of the person; or
ii) to prevent the person from causing injury to himself or herself or
any other person; or
iii) to prevent the person from persistently destroying property; and
403
b) if the use and form of restraint has been —

i) approved by the authorised psychiatrist; or
ii) in the case of an emergency, authorised by the senior registered
nurse on duty and notified to a registered medical practitioner
without delay; and
c) for the period of time specified in the approval or authorisation
under paragraph (b).
1A) In this section mechanical restraint, in relation to a person, means the
application of devices (including belts, harnesses, manacles, sheets and
straps) on the person’s body to restrict his or her movement, but does
not include the use of furniture (including beds with cot sides and
chairs with tables fitted on their arms) that restricts the person’s
capacity to get off the furniture.
1B) In the circumstances referred to in subsection (1)(b)(ii) the senior
registered nurse must notify the authorised psychiatrist of the
application of mechanical restraint as soon as practicable.
1C) It is not necessary to obtain a person’s consent to the application of
mechanical restraint to him or her.
1D) If mechanical restraint is applied to a person, he or she must —
a) be under continuous observation by a registered nurse or registered
medical practitioner; and
b) be reviewed as clinically appropriate to his or her condition at
intervals of not more than 15 minutes by a registered nurse; and
c) subject to subsection (1E), be examined at intervals of not more than
4 hours by a registered medical practitioner; and
d) be supplied with bedding and clothing which is appropriate in the
circumstances; and
e) be provided with food and drink at the appropriate times; and
f ) be provided with adequate toilet arrangements.
1E) The authorised psychiatrist may vary the interval at which a person to
whom mechanical restraint is applied is medically examined under
subsection (1D)(c), if the authorised psychiatrist thinks it appropriate
to do so.
1F) If a registered medical practitioner or the senior registered nurse on
duty or the authorised psychiatrist is satisfied, having regard to the
criteria specified in subsection (1), that the continued application of
mechanical restraint to a person is not necessary, he or she must
without delay release the person from the restraint.
2) Any person who applies mechanical restraint to a person receiving
treatment for a mental disorder in an approved mental health service in
contravention of subsection (1) is guilty of an offence against this Act.
3) The authorised psychiatrist must at the end of each month prepare and
send to the chief psychiatrist a report of the use of mechanical restraint
specifying in each case —
404
a) the form of mechanical restraint used; and

b) the reasons why that restraint was used; and
c) the name of the person who approved or authorised the use of that
restraint; and
d) the name of the person who applied that restraint; and
e) the period of time for which the person was kept restrained; and
f ) if the authorised psychiatrist varied the interval at which the person
was medically examined, the reason for that variation —
during that month. [italics added]
Seclusion
Section 82 defines ‘seclusion’ as follows:
1) In this section, seclusion means the sole confinement of a person at
any hour of the day or night in a room of which the doors and
windows are locked from the outside.
2) A person receiving treatment for a mental disorder in an approved
mental health service may be kept in seclusion only —
a) if it is necessary to protect the person or any other person from an
immediate or imminent risk to his or her health or safety or to
prevent the person from absconding; and
b) if the use of seclusion has been —
i) approved by the authorised psychiatrist; or
ii) in the case of an emergency, authorised by the senior registered
nurse on duty and notified to a registered medical practitioner
without delay; and
c) for the period of time specified in the approval or authorisation
under paragraph (b).
2A) In the circumstances referred to in subsection (2)(b)(ii) the senior
registered nurse must notify the authorised psychiatrist of the use of
seclusion as soon as practicable.
2B) It is not necessary to obtain a person’s consent to keep him or her in
seclusion.
3) A person who is kept in seclusion must —
a) be reviewed as clinically appropriate to his or her condition at
intervals of not more than 15 minutes by a registered nurse; and
b) subject to subsection (3A), be examined at intervals of not more than
4 hours by a registered medical practitioner; and
c) be supplied with bedding and clothing which is appropriate in the
circumstances; and
d) be provided with food and drink at the appropriate times; and
e) be provided with adequate toilet arrangements.
3A) The authorised psychiatrist may vary the interval at which a person who
is kept in seclusion is medically examined under subsection (3)(b), if
the authorised psychiatrist thinks it appropriate to do so.
405
3B) If a registered medical practitioner or the senior registered nurse on duty

or the authorised psychiatrist is satisfied, having regard to the criteria
specified in subsection (2), that the continued seclusion of a person is
not necessary, he or she must without delay end the keeping of the
person in seclusion.
4) Any person who keeps a person in seclusion in contravention of this
section is guilty of an offence against this Act.
5) The authorised psychiatrist must at the end of each month prepare and
send to the chief psychiatrist a report specifying in each case—
a) the reasons why seclusion was used; and
b) the name of the person who approved or authorised the use of
seclusion; and
c) the name of the person who kept the person in seclusion; and
d) the period of time for which the person was kept in seclusion; and
e) if the authorised psychiatrist varied the interval at which the person
was medically examined, the reason for that variation—
during that month. [italics added]
Patient rights
The Act seeks to protect the rights of persons who are brought within its provi-
sions for the purposes of care, treatment and control. The objects of the Act in
sections 4 and 5 are clearly directed to recognising the rights of people brought
within the provisions of the Act and the need to ensure that their fundamental
rights are protected. As an example, section 4(2) states:
It is the intention of Parliament that the provisions of this Act are to be
interpreted and that every function, power, authority, discretion, jurisdiction
and duty conferred or imposed by this Act is to be exercised or performed
so that—
a) people with a mental disorder are given the best possible care and
treatment appropriate to their needs in the least possible restrictive
environment and least possible intrusive manner consistent with the
effective giving of that care and treatment; and
b) in providing for the care and treatment of people with a mental disorder
and the protection of members of the public any restriction upon the
liberty of patients and other people with a mental disorder and any
interference with their rights, privacy, dignity and self-respect are kept to
the minimum necessary in the circumstances. [emphasis added]
Having regard to the above provisions, it is clear that the intention of the Act is to
ensure that persons who require care, treatment and control under the provisions of
the mental health legislation in Victoria are not only given the best possible care but
receive that care ‘in the least restrictive environment’ and that, to the maximum extent
possible, patients retain the right to give and withhold consent to treatment. The Act
also provides (s 5(b)) that one of the objectives of the Department of Health is:
406
b) to ensure that patients and other people with a mental disorder are
informed of their legal rights and other entitlements under this Act and
that the relevant provisions of this Act are explained to patients and other
people with a mental disorder in the language, mode of communication
or terms which they are most likely to understand.
Further reinforcement of a patient’s rights under the Act can be found in section
18, which states as follows:
1) Every person on becoming a patient must be given the appropriate
prescribed printed statement—
a) advising the patient as to the legal rights and other entitlements of
patients under this Act including the right to obtain legal representa-
tion and to have a second psychiatric opinion; and
b) containing any other information relating to the treatment and care of
the patient that the Department considers relevant including, in the
case of a patient detained under section 20BJ(1) or 20MB of the
Crimes Act 1914 of the Commonwealth, information as to his or her
legal rights and other entitlements under that Act.
2) The statement may be printed in different languages so that wherever
possible a patient can be given a copy of the statement printed in a
language with which the patient is familiar.
3) In addition to the statement, the patient must be given an oral
explanation of the information contained in the statement and, if he or
she appears not to have understood, or to be incapable of understanding,
the information contained in the statement, arrangements must be made
to convey the information to the patient in the language, mode of
communication or terms which he or she is most likely to understand.
4) It is the duty of the authorised psychiatrist to ensure that this section is
complied with in the approved mental health service.
Appeal and review rights

Reference has already been made to the role of the Mental Health Review Board
under the Act together with the Supreme Court and the Victorian Civil and Admin-
istrative Tribunal (VCAT). In summary, the respective roles of the three authorities
are expressed below.
• The Mental Health Review Board has a statutory power to review decisions
taken by an authorised psychiatrist concerning the detention and ongoing
detention of an involuntary patient. That review mechanism is automatically
provided for under the Act in that the board is required to review the
detention of involuntary patients within the set statutory time limits. In
addition, the Mental Health Review Board may hear an appeal from a patient
detained under the Act at any time.
• Any decision or determination of the Mental Health Review Board may be
reviewed by way of appeal process to VCAT. Further, the board may, of its
own request or on the request of any person or party to proceedings before it,
407
make application to the Supreme Court of Victoria on a question of law

which arises in any matter before it.
COMMUNITY VISITORS
In Victoria the role of reviewing mental health services on an ongoing basis is given
to persons known as community visitors. These are people appointed by the gov-
ernor on the recommendation of the minister of the day. The provisions applying
in relation to the appointment of community visitors are set out in Schedule 5 of
the Act.
The primary role of community visitors under the Act is to visit mental health
services in Victoria for the purposes of inquiring into a number of aspects of those
services. The term ‘mental health service’ is defined under section 107 as being that
part (if any) of an approved mental health service or an agency providing commu-
nity support services that provides residential services and 24-hour nursing care for
people with a mental disorder.
In essence, all aspects of mental health services in Victoria are intended to be
visited by a community visitor. Apart from the general statement that they are to
visit mental health services in a particular area, the functions of a community visitor
are spelled out in more detail in section 109 of the Act which states that community
visitors are to visit and enquire into:
a) the adequacy of services for the assessment and treatment of people with
a mental disorder; and
b) the appropriateness and standard of facilities for the accommodation,
physical wellbeing and welfare of persons receiving treatment or care for a
mental disorder; and
c) the adequacy of opportunities and facilities for the recreation, occupation,
education, training and rehabilitation of persons receiving treatment or
care for a mental disorder; and
d) the extent to which persons receiving treatment or care for a mental
disorder are being given the best possible treatment or care appropriate to
their needs in the least possible restrictive environment and least possible
intrusive manner consistent with the effective giving of that treatment or
care; and
e) any failure to comply with the provisions of this Act; and
f ) any other matter that an official visitor considers appropriate having
regard to the objectives specified in section 5; and
g) any complaint made to a community visitor by a person receiving
treatment or care for a mental disorder. [emphasis added]
In undertaking their visits and inquiries, community visitors have very wide
powers of inspection. Section 112 provides that a community visitor when visiting
a mental health service is entitled to inspect any part of the premises to see any
patient who is receiving treatment or care, unless the person receiving treatment for
a mental disorder requests otherwise, and can make any inquiries relating to admis-
sion, detention, care, treatment and control of people in the particular service. In
408
addition, a community visitor may inspect any documents or medical records about
a person’s treatment or care as long as he or she has obtained the consent of the
patient.
Further, any member of staff is required to assist the community visitor in car-
rying out their functions and, should any member of staff fail to do that or refuse
or neglect to assist a community visitor, there are penalties provided under the Act
(s 112).
Community visitors are represented by the Community (Psychiatric Services)
Visitors Board and each year that board is required to submit a report to the Min-
ister for Health about the activities of the community visitors; that report is also
made available to Parliament.
Western Australia: Mental Health Act 1996

The long title of the Western Australian Mental Health Act 1996 states that it is ‘an
Act to provide for the care, treatment, and protection of persons who have mental
illnesses, and for related purposes’.
The objects of the Act as stated in section 5 are:
a) to ensure that persons having a mental illness receive the best care and
treatment with the least restriction of their freedom and the least interfer-
ence with their rights and dignity; and
b) to ensure the proper protection of patients as well as the public; and
c) to minimise the adverse effects of mental illness on family life.
DEFINITIONS
Section 3 contains the definition of particular words and terms used in the Act.
However, the definition of ‘mental illness’ is in section 4 and states:
1) For the purposes of this Act a person has a mental illness if the person suffers
from a disturbance of thought, mood, volition, perception, orientation or
memory that impairs judgment or behaviour to a significant extent.
2) However a person does not have a mental illness by reason only of one or
more of the following, that is, that the person —
a) holds, or refuses to hold, a particular religious, philosophical, or
political belief or opinion;
b) is sexually promiscuous, or has a particular sexual preference;
c) engages in immoral or indecent conduct;
d) has an intellectual disability;
e) takes drugs or alcohol;
f ) demonstrates anti-social behaviour.
Reference is also made throughout the Act to the term ‘authorised hospital’. In
section 21 provision is made for a public hospital to be authorised to admit people
for the purposes of treatment under the Act.
In addition to the provisions of section 21, section 3 defines ‘authorised hospital’
as follows:
409
a) a public hospital, or part of a public hospital, that is for the time being
authorised under section 21; and
b) a private hospital whose licence is endorsed under section 26DA of the
Hospitals and Health Services Act 1927.
ADMISSION TO AND DETENTION IN AN AUTHORISED HOSPITAL

Voluntary admission and treatment
While the emphasis in the Act is directed towards the admission, detention, care
and treatment of involuntary patients, there are circumstances where a person
knows that he or she is mentally ill and voluntarily seeks admission to hospital for
care and treatment. The term ‘voluntary patient’ is not defined in the Act. Never-
theless, by implication, the Act makes provision for such a patient when the provi-
sions of sections 29 and 30 are considered. Section 29 confers a right on a medical
practitioner or an authorised mental health practitioner who suspects a person
should be made an involuntary patient to refer the person to a psychiatrist for
examination. Section 30 provides that that right extends to a person ‘who is a patient
in an authorised hospital other than an involuntary patient …’ and seeks to be
discharged from hospital. In those circumstances, the person may be held for up to
6 hours for examination by a psychiatrist.
As well, section 107 requires that voluntary patients must give informed consent
to electroconvulsive therapy.
Involuntary admission and treatment

In addition to the above, the provisions of section 26 of the Act would suggest
that all patients admitted to an authorised hospital should be voluntary patients
unless the provisions of that section apply. Section 26 provides:
1) A person should be an involuntary patient only if —
a) the person has a mental illness requiring treatment;
b) the treatment can be provided through detention in an authorised
hospital or through a community treatment order and is required to be
so provided in order —
i) to protect the health or safety of that person or any other person;
ii) to protect the person from self-inflicted harm of a kind described
in subsection (2); or
iii) to prevent the person doing serious damage to any property;
and
c) the person has refused or, due to the nature of the mental illness, is
unable to consent to the treatment; and
d) the treatment cannot be adequately provided in a way that would
involve less restriction of the freedom of choice and movement of the
person than would result from the person being an involuntary patient.
2) The kinds of self-inflicted harm from which a person may be protected by
making the person an involuntary patient are —
a) serious financial harm;
410
b) lasting or irreparable harm to any important personal relationship

resulting from damage to the reputation of the person among those
with whom the person has such relationships; and
c) serious damage to the reputation of the person.
In the first instance, section 29 provides that a medical practitioner or an autho-

rised mental health practitioner may refer a person to a psychiatrist for examination
if they suspect that person should be made an involuntary patient under the Act in
accordance with the provisions of section 26.
A mental health practitioner includes a registered nurse as set out in section 19(1)
as follows:
1) For the purposes of this Act a person is a mental health practitioner if he
or she is —
a) a psychologist; or
b) a person —
i) registered under the Health Practitioner Regulation National Law
(Western Australia) in the nursing and midwifery profession; or
ii) an occupational therapist registered under the Occupational Thera-
pists Act 2005; or
c) a person with another recognised qualification,
d) and has at least 3 years’ experience in the management of persons who
have mental illnesses.
Section 20 states that the Chief Psychiatrist may designate a mental health prac-
titioner as an authorised mental health practitioner if of the opinion the practitioner
has qualifications, training and experience appropriate for the performance of the
functions of an authorised mental health practitioner as set out in sections 29 and
63 of the Act.
The referral for examination is to be made to an authorised hospital and can only
be made after the person has been examined by the medical practitioner or autho-
rised mental health practitioner (s 31). If need be the ‘referrer’ may authorise the
police to assist with transporting a person to an authorised hospital for examination
(s 34). Once made, the authority to refer lapses after 48 hours (s 32).
The person referred for examination must be examined within 7 days (s 36(2))
and within 24 hours of arrival at the place where the examination is to take
place.
After the examination if the psychiatrist believes the person should be an invol-
untary patient, the person is admitted to an authorised hospital or the psychiatrist
may make a community treatment order (s 43). The psychiatrist may defer making
a final decision as to the person’s involuntary status for 72 hours and assess them
again (s 37(1)(b) and (2)).
The initial period of detention in an authorised hospital must not exceed 28 days
(s 48(2)) at which time the person must be examined again. A further period of
detention of up to 6 months may be ordered or a community treatment order of
up to 6 months may be made (s 49(4)). The person may be discharged from their
411
involuntary patient status at any time during the 6-month period if the psychiatrist
considers it appropriate (s 52).
While in an authorised hospital, an involuntary patient may be given psychiatric
treatment without the patient’s consent (s 109).
EMERGENCY PSYCHIATRIC TREATMENT, SECLUSION AND RESTRAINT OF PATIENTS

Emergency psychiatric treatment
Provision is made in section 113 for a person to be treated in emergency circum-
stances if it is considered necessary:
a) to save the person’s life; or
b) to prevent the person from behaving in a way that can be expected to
result in serious physical harm to the person or any other person.
Psychosurgery is not permissible as an emergency psychiatric treatment (s 113(2)).
Emergency psychiatric treatment may be given without consent (s 114). In
giving such emergency treatment, section 115 provides that the following must be
recorded:
• particulars of the treatment;
• the time and place at which, and the circumstances in which, the treatment
was given; and
• the names of the person given treatment and the persons involved in giving
the treatment.
A report regarding the giving of treatment, including the information that is

required above, must also be sent to the Mental Health Review Board (s 115).
Seclusion
Section 116 defines ‘seclusion’ as ‘sole confinement in a room that it is not within
the control of the person confined to leave’. Seclusion can only be done in an
authorised hospital (s 117) and must be authorised by a medical practitioner or, in
an emergency, a senior mental health practitioner (s 118) in the following terms of
section 119:
1) A person is not to give the authorisation to keep a patient in seclusion
unless it is necessary for the protection, safety, or wellbeing of —
a) the patient; or
b) another person with whom the patient might come in contact if not
kept in seclusion.
Penalty: $1000.
2) Authorisation to keep a patient in seclusion is to be in writing and is to
include particulars of the period for which the authorisation is given and
anything else prescribed by the regulations.
3) A senior mental health practitioner who in an emergency authorises a
patient to be kept in seclusion is to notify a medical practitioner as soon
412
as is practicable, and the medical practitioner may vary or revoke the

authorisation.
Penalty: $1000.
4) Records of each authorisation to keep a patient in seclusion are required
to be kept as prescribed by the regulations.
Pursuant to section 120, where a patient is kept in seclusion the treating psychia-
trist is to ensure that:
a) appropriate provision is made for the basic needs of the patient, including
bedding, clothing, food, drink and toilet facilities; and
b) the patient is observed by a mental health practitioner at regular intervals,
as prescribed by the regulations; and
c) the patient is regularly monitored by a psychiatrist or another medical
practitioner; and
d) a report of the patient being kept in seclusion is made as soon as is
practicable to the Mental Health Review Board.
Restraint
Section 121 defines ‘mechanical bodily restraint’ in relation to a person as
restraint ‘preventing the free movement of the person’s body or a limb by mechanical
means, other than by the use of a medical or surgical appliance for the proper treat-
ment of physical disease or injury’.
Like seclusion, restraint must be authorised by a medical practitioner, or, in an
emergency, a senior mental health practitioner (s 122). Section 123 states that the
circumstances in which restraint may be authorised is when it is necessary for:
a) the medical treatment of the patient; or
b) the protection, safety, or well-being of —
i) the patient; or
ii) another person with whom the patient might come in contact if the
restraint is not used; or
c) preventing the patient from persistently destroying property.
The particulars of the authorisation are required to be in the following terms
(s 123(2) and (3)):
2) Authorisation to use mechanical bodily restraint on a patient is to be in
writing and is to include particulars of the period for which the
authorisation is given and anything else prescribed by the regulations.
3) A senior mental health practitioner who, in an emergency, authorises the
use of mechanical bodily restraint on a patient is to notify a medical
practitioner as soon as is practicable, and the medical practitioner may
vary or revoke the authorisation.
Penalty: $1000.
Records of each authorisation to use mechanical bodily restraint on a patient are
to be kept as prescribed by the regulations (s 123(4)).
413

Community treatment order
Section 68 of the Act outlines the terms of a community treatment order (CTO)
that may be made as follows:
1) A community treatment order is to specify —
a) a psychiatrist who will be responsible for supervising the carrying out
of the order;
b) a treatment plan outlining the treatment that the patient is to receive
under the order and including details of —
i) where and when the treatment is to be given; and
ii) such other matters relating to the treatment as it is appropriate to
specify; and
c) a medical practitioner or mental health practitioner who will be
responsible for ensuring that the treatment plan is carried out; and
d) the time when the order will lapse, being not more than 3 months
after the order comes into effect.
2) The order may include directions to the treating practitioner and to the
psychiatrist who will be responsible for supervising the carrying out of the
order as to reporting on the patient’s progress.
A CTO must be confirmed within 72 hours, as provided in section 69, and may
be revoked by the supervising psychiatrist in accordance with section 70.
Psychosurgery
Psychosurgery is defined and permitted within the provisions of sections 100
and 101 of the Act. Approval to conduct psychosurgery must be given by the
Mental Health Review Board (s 102) in accordance with the provisions of
section 103.

ECT may be administered, subject to the conditions set out in sections 104
and 105 of the Act. Any disagreement by the relevant psychiatrist in withholding
approval for ECT is to be determined by the Mental Health Review Board
(s 106).
Treatment prohibited by the Act

Section 99 provides:
1) A person is not to administer to or perform on another person —
a) deep sleep therapy; or
b) insulin coma or sub-coma therapy.
2) A person who contravenes subsection (1) commits a crime.
Penalty: Imprisonment for 5 years.
414
Official visitors
Section 177 makes provision for the appointment by the minister of persons as
official visitors. Their primary role is to visit all authorised hospitals once a month
(s 186) for the following purposes as identified in section 188:
a) to ensure that affected persons have been informed of their rights; and
b) to ensure that the rights of affected persons are observed; and
c) to inspect places where affected persons are detained, cared for, or treated
under this Act and ensure that they are kept in a condition that is safe
and otherwise suitable; and
d) to be accessible to hear complaints concerning affected persons made by
those persons, their guardians or their relatives; and
e) to enquire into and seek to resolve complaints concerning affected
persons made by those persons, their guardians or their relatives; and
f ) if it would be appropriate for any other person or body to further enquire
into or deal with any matter, to refer the matter to that person or body; and
g) to assist with the making and presentation of an application or appeal
under this Act in respect of an affected person, or where authorised by
this Act to do so, to make any such application.
In carrying out the above, official visitors may make such inquiries as they
consider necessary and, where appropriate, inspect a patient’s medical record
(s 190(4)(c) and (d)).
MENTAL HEALTH REVIEW BOARD

Section 125 establishes the Mental Health Review Board. The board is required to
regularly review the involuntary detention of patients.
The board is required to review an order made to detain a person as an involun-
tary patient as soon as practicable after the initial order is made but, in any event,
not later than 8 weeks after the initial order was made (s 138). After that initial
review, the board must conduct a periodic review every 6 months if the person
continues to be an involuntary patient (s 139).
In addition to the above requirements, the board may carry out a review where
the application is made by the patient concerned, an official visitor, or any other
person who the board is satisfied has a genuine concern for the patient (s 142(2))
or where the board considers it appropriate to do so because of any report or com-
plaint it receives (s 144).
Following any review undertaken, the board may make such order as it thinks
fit and, in so doing, may:
• order that the person is no longer an involuntary patient;
• order that a community treatment order be made in respect of the person, giving
such directions, if any, as it thinks fit in relation to the terms of the order; or
• if the person is the subject of a community treatment order, vary the order,
and give such directions in relation to the order as it thinks fit (s 145).
415
Appeal and review rights

A person dissatisfied by a decision or order of the board may apply to the State
Administrative Tribunal for review of the order or decision (s 148A). Any person
dissatisfied with a decision or order of the State Administrative Tribunal may appeal
to the Supreme Court on the grounds of an error of fact or law or both as well as
jurisdiction (s 149). Other persons who satisfy the court they have a sufficient inter-
est in the matter may appeal by leave of the court (s 149).
Endnotes
1) New South Wales Mental Health Drug and 7) Ibid, p 60.
Alcohol Office, The Mental Health Act 8) Ibid, p 61.
(2007) Guide Book, 4th ed, p 97 (lSBN 0 9) Ibid, p 76.
7313 2900 7). 10) Ibid, p 92.
2) Ibid, p 6. 11) Ibid, p 93.
3) Ibid, p 7. 12) Victoria Department of Health, Review of
4) Ibid, p 9. the Mental Health Act 1986, www.health.vic.
5) Ibid, p 28. gov.au/mentalhealth/mhactreview.
6) Ibid, p 56.
416
Index
Page numbers followed by ‘f ’ indicate figures, ‘t’ indicate tables, and ‘b’ indicate boxes.
Civil Law (Wrongs) Act 2002 (ACT) 45t,

A 48–51, 54, 96–98, 110, 132
abbreviations 230 Civil Liability Act 1936 (SA) 45t, 48–49,
academic publications 67 55–56, 63, 96–98, 110, 133
accreditation hours 275 Civil Liability Act 2002 (Tas) 48–49, 56, 63,
accreditation standards 66–67 96–98, 110
ACFI see Aged Care Funding Instrument Civil Liability Act 2002 (WA) 45t, 48–49,
ACM see Australian College of Midwives 57–58, 63, 96–98, 110, 133, 172t–173t
ACORN see Australian Council of Operating Civil Liability Act 2003 (Qld) 45t, 48–49, 55,
Room Nurses 61–63, 96, 98, 110, 132–133
ACT see Australian Capital Territory Commonwealth of Australia Constitution Act
Act of Parliament 5 1901 (Cth) 6, 8, 15
activities of daily living (ADLs) 238 Compensation to Relatives Act 1897 (NSW) 78,
Acts — specific 109
4 George 4 1823 (UK) 5–6 Compensation to Relatives (De Facto
Acts Amendment Act (Consent to Medical Relationships) Amendment Act 1984 (NSW)
Treatment) Act 2008 (WA) 172t–173t 109
Adult Guardianship Act 1988 (NT) 156t Consent to Medical Treatment and Palliative
Age Discrimination Act 2004 (Cth) 185 Care Act 1995 (SA) 164, 167t, 172t–173t
Aged Care Act 1997 (Cth) 237–238 Coroners Act 289–290, 293–294, 297
Anatomy Act 303 Coroners Act (NT) 289, 293–294, 306t–307t
Anatomy Act 1930 (WA) 306t–307t Coroners Act 1980 (NSW) 313
Anatomy Act 1977 (NSW) 304, 306t–307t, Coroners Act 1985 (Vic) 306t–307t
313 Coroners Act 2009 (NSW) 289, 293–294
Anti-Discrimination Act (NT) 184 Crimes Act 1900 (NSW) 18
Anti-Discrimination Act 1977 (NSW) 184 Crimes Act 1914 (Cth) 407
Anti-Discrimination Act 1991 (Qld) 184 Disability Discrimination Act 1992 (Cth)
Anti-Discrimination Act 1998 (Tas) 185 185
Australian Courts Act 1828 (UK) 5–6 Discrimination Act 1991 (ACT) 184
Australian Human Rights Commission Act 1986 Drug Misuse and Trafficking Act 1985 (NSW)
(Cth) 185 18
Care and Protection of Children Act 2007 (NT) Emergency Medical Operations Act 1973 (NT)
168t 167t
Child Protection Act 1999 (Qld) 168t Equal Opportunity Act 1984 (SA) 184–185
Child Wellbeing and Safety Act 2005 (Vic) 168t Equal Opportunity Act 1984 (WA) 185
Children, Young Persons and Their Families Act Equal Opportunity Act 1995 (Vic) 185
1997 (Tas) 167, 168t Fair Work Act 2009 (Cth) 186–188, 190
Children, Youth and Families Act 2005 (Vic) Family Law Act 1975 (Cth) 15
162, 168t, 403 Federal Court of Australia Act 1976 (Cth)
Children and Community Services Act 2004 15
(WA) 167, 168t Federal Magistrates Act 1999 (Cth) 14–15
Children and Young People Act 1999 (ACT) Guardianship Act 1987 (NSW) 156t, 158,
162 332, 334–335, 339
Children and Young People Act 2008 (ACT) Guardianship and Administration Act 1986
168t (Vic) 155–156, 156t, 393
Children and Young Persons (Care and Guardianship and Administration Act 1990
Protection) Act 1998 (NSW) 162, 165, 167t, (WA) 156t, 172t–173t
168t Guardianship and Administration Act 1993
Children’s Protection Act 1993 (SA) 168t (SA) 156–157, 156t, 375–376, 380–382
Civil and Administrative Tribunal Act 2008 Guardianship and Administration Act 1995
(ACT) 322 (Tas) 156t, 172, 384
417
INDEX
Guardianship and Administration Act 2000 Prohibition of Human Cloning for Reproduction
(Qld) 156t, 157–158 Act 2002 (Cth) 314
Guardianship and Management of Property Act Public Health Act 1991 (NSW) 47, 65–66
1991 (ACT) 155, 156t Public Health (General) Regulation 2002
Health Administration Act 1982 (NSW) (NSW) 65
242–243 Public Hospitals Act 1929 (NSW) 121
Health Care Liability Act 2001 (NSW) 131 Quarantine Act 1908 (Cth) 176
Health Legislation Amendment (Midwives and Racial Discrimination Act 1975 (Cth) 185
Nurse Practitioners) Act 2010 (Cth) Research Involving Human Embryos Act 2002
271–272 (Cth) 314
Health Practitioner Regulation (Consequential Road Traffic Act 1961 (SA) 161
Amendments) Act 2010 (Cth) 7 Road Transport (Safety and Traffic Management)
Health Practitioner Regulation National Law Act 1999 (NSW) 18
(NSW) 130–131 Safe Work Act 2008 (Cth) 193
Health Practitioner Regulation National Law Sex Discrimination Act 1984 (Cth) 185
(WA) 411 Therapeutic Goods Act 1989 (Cth) 212, 275
Health Practitioner Regulation National Law Act Transplantation and Anatomy Act 1978
2009 (Qld) 151–152, 222–223, 253–254 (ACT) 167t, 303–304, 306t–307t, 308–310
Healthcare Identifiers Act 2010 (Cth) 239 Transplantation and Anatomy Act 1979 (Qld)
Hospitals and Health Services Act 1927 (WA) 167t, 306t–307t
410 Transplantation and Anatomy Act 1983 (SA)
Human Tissue Act 1982 (Vic) 167t, 306t–307t, 306t–307t, 309, 312
312–313 Transplantation and Anatomy Act 2011 (NT)
Human Tissue Act 1983 (NSW) 306t–307t, 306t–307t
311, 313 Trustee and Guardian Act 2009 (NSW) 342, 344
Human Tissue Act 1985 (Tas) 167t, 306t–307t, Work Health and Safety Act 2011 (NSW) 194
312 Workplace Relations Act 1996 (Cth) 7–8,
Human Tissue Acts 304–305 186–187
Human Tissue and Transplant Act 1982 (WA) Wrongs Act 1958 (Vic) 45t, 48–49, 56–57,
166–167, 167t, 306t–307t, 310, 312 62–63, 96–98, 110, 133
Law Reform Act 1995 (Qld) 132–133 see also Civil Liability Act 2002 (NSW); Mental
Limitation of Actions Act 1958 (Vic) 112 Health Act 1986 (Vic); Mental Health
Limitations Act 1969 (NSW) 111 (Treatment and Care) Act 1994 (ACT); Mental
Local Courts Act 1982 (NSW) 12 Health Act 2000 (Qld); Mental Health Act
Medical Treatment Act 1988 (Vic) 161, 171, 2007 (NSW); Mental Health Act 2009 (SA);
172t–173t, 403 Mental Health and Related Services Act 1998
Medical Treatment (Health Directions) Act 2006 (NT); Work Health and Safety Act
(ACT) 172t–173t Acts Amendment Act (Consent to Medical
Mental Health Act 7, 342, 376 Treatment) Act 2008 (WA) 172t–173t
Mental Health (Forensic Provisions) Act 1990 actus non facit reum nisi mens sit rea 20
(NSW) 337, 339 ADLs see activities of daily living
Mental Health Act 1996 (Tas) 383–392 admission
Mental Health Act 1996 (WA) 409–416 in approved treatment centre 376–377
Minors (Property and Contracts) Act 1970 CCO 386
(NSW) 164 certificate 336
Natural Death Act 1988 (NT) 172t–173t court order for 337
Occupational Therapists Act 2005 (WA) 411 CTO 387
Personal Injuries (Liabilities and Damages) Act emergency 324–326
2003 (NT) 45t, 49, 96, 110–111, 132 in emergency department 324–326
Poisons Act and Regulations 65, 223 of guilt 109–110
Poisons and Therapeutic Goods Act 1966 (NSW) medical practitioner certificate 336
5 in Mental Health Act 1986 (Vic) 394
Police Powers and Responsibilities Act 2000 in Mental Health Act 1996 (Tas) 384–388
367 in Mental Health Act 1996 (WA) 410
Powers of Attorney Act 1998 (Qld) 156t in mental health facility 322–328, 334
Privacy Act 1988 (Cth) 246 primary carer requesting 338
Privacy Amendment (Private Sector) Act 2000 see also involuntary admission; voluntary
(Cth) 247 admission
418
Index
Adult Guardianship Act 1988 (NT) 156t Mental Health Act 1996 (WA) rights for 416
adults in Mental Health Act 2000 (Qld) 375
blood removal from 310–311 in Mental Health Act 2007 (NSW) 345, 347
consent and 154–161 in Mental Health Act 2009 (SA) 382
consent and emergency situations of 160 rights to 354
consent capacity lacking for 154–159 Supreme Court and 363
ethical decision-making for dependent 310b Victorian Mental Health Review Board and
financial decision-making of 155 397
regenerative tissue removal consent approved professional practice review program
for 308–309 275
advance care planning 170–171 approved treatment centre
advance directives 170–171 admission and detention in 376
adverse event 247–248 involuntary admission to 376–377
Age Discrimination Act 2004 (Cth) 185 voluntary admission and treatment to 376
Aged Care Act 1997 (Cth) 237–238 approved treatment facility 354
Aged Care Funding Instrument (ACFI) 238 APSF see Australian Patient Safety Foundation
aggravated sexual assault 138 arsenic poisoning 99–100
aggression 199–200 ART see assisted reproductive technology
AHIMA see American Health Information arterio-venous malformation (AVM) 232
Management Association artificial insemination 315
AHMAC see Australian Health Ministers Advisory artificial nutrition 157–158
Council assault 20, 137–138
AHPRA see Australian Health Practitioner assault and battery 137–138
Regulation Agency assessable person 339
AIMS see Australian Incident Monitoring System assessment
AIRC see Australian Industrial Relations emergency voluntary 367–368
Commission in Mental Health (Treatment and Care) Act
Albrighton v Royal Prince Alfred Hospital 118–119 1994 (ACT) 323–324
allied person 374 in Mental Health Act 1996 (Tas) 385–386
ambulance officer 336–337 in Mental Health Act 2000 (Qld) 365–366
American Health Information Management assisted reproductive technology (ART)
Association (AHIMA) 240 314–316
American Psychiatric Association 352 Australia
anaesthetic deaths 291 English legal system in 5–8
Anatomy Act 303 hierarchical court structure in 11, 12f
Anatomy Act 1930 (WA) 306t–307t human tissue legislation in 304–305
Anatomy Act 1977 (NSW) 304, 306t–307t, 313 Australian and New Zealand Intensive Care
ANMAC see Australian Nursing and Midwifery Society (ANZICS) 312
Accreditation Council Australian Capital Territory (ACT)
ANMC see Australian Nursing and Midwifery children’s non-regenerative tissue removal in
Council 310
Anti-Discrimination Act (NT) 184 Civil Law (Wrongs) Act 2002 for 54
Anti-Discrimination Act 1977 (NSW) 184 death inquest statement in 291
Anti-Discrimination Act 1991 (Qld) 184 Discrimination Act 1991 of 184
Anti-Discrimination Act 1998 (Tas) 185 good Samaritan defined in 132
ANZICS see Australian and New Zealand intellectual disability in 321–322
Intensive Care Society limitation periods in 111
AODR see Australian Organ Donor Registry Mental Health (Treatment and Care) Act 1994
apologies 109–111 (ACT) in 321–322
admission of guilt and 109–110 mental health legislation in 320
defining 110 public health or safety in 293–294
Western Australia defining 110 standard of care for 54
appeal process tribunal obligations in 326
in court structure 16 Work Health and Safety Act of 193–194
Guardianship Board 382 Australian College of Midwives (ACM) 259–260,
in Mental Health (Treatment and Care) Act 275
1994 (ACT) 328–329 Australian Council of Operating Room Nurses
in Mental Health Act 1986 (Vic) 407–408 (ACORN) 64, 84
419
INDEX
Australian Courts Act 1828 (UK) 5–6 blood

Australian Health Ministers Advisory Council adult removal of 310–311
(AHMAC) 278 children’s removal of 311
professional indemnity in 130 transfusions of 160–161, 166–167, 167t, 301,
public notification received by 282b–283b 178
Australian Health Practitioner Regulation Agency bodily restraint 359–361
(AHPRA) 253 The Body as Property (Scott) 301
education provider defined by 261 Bolam test 51–52, 54
functions of 256b Bolam v Friern Hospital Management Committee
public notification assisted by 281 51
Australian Health Workforce Advisory Council brain damage 74
255 brain death 311–312
Australian Health Workforce Ministerial Council breach of confidentiality 244
255 Breen v Williams 245–246
Australian Human Rights Commission Act 1986 BT (as administratrix of the estate of the late AT) v
(Cth) 185 Oei 47, 65
Australian Incident Monitoring System (AIMS) burden of proof 8–9, 18–19
241 business transfer 189
Australian Industrial Relations Commission ‘but for’ test 99–101, 104
(AIRC) 186
Australian Law Reform Commission 303–304
Australian Nursing and Midwifery Accreditation C
Council (ANMAC) 261, 284 capacity
Australian Nursing and Midwifery Council adults lacking 154–159
(ANMC) 275 factors impairing 162
Australian Nursing Federation 188 legal 153–169
Australian Organ Donor Registry (AODR) cardiac death 311
313 Care and Protection of Children Act 2007
Australian Patient Safety Foundation (APSF) (NT) 168t
240 case law 4–5
authorised health professional 377 cases cited
authorised hospital 409–412 Albrighton v Royal Prince Alfred Hospital
authorised mental health practitioner 365–366 118–119
authorised mental health service Barnett v Chelsea and Kensington Hospital
emergency examination order in 368 99–101
justices examination order for 367 Bill William Pty Ltd v Williams 204
Mental Health Act 2000 (Qld) Bolam v Friern Hospital Management Committee
defining 365–366 51
autonomy 34–35 Breen v Williams 245–246
AVM see arterio-venous malformation BT (as administratrix of the estate of the late AT)
v Oei 47, 65
Chaplin v Dunstan 125
B Chappel v Hart 59, 61, 98–99
back injury 208 Elliott v Bickerstaff 86–87
barbiturate-induced coma 144 Ellis v Wallsend District Hospital 119–123
Barnett v Chelsea and Kensington Hospital Finch v Rogers 103–104
99–101 Halverson v Dobler 58–59
Barwick, Garfield 201 Hart v Herron 142–143, 175
Bateman case 21 Herd v Weardale Steel Co 175
battery 137–138, 141 Hollis v Vabu Pty Ltd 116
Baxter, Tracey 68–73 Ison v Northern Rivers Area Health
Beauchamp, T. L. 34–35 Service 81–84
beneficence 35 K v Minister for Youth and Community
beyond reasonable doubt 18–19 Services 165
Bice, Timothy John 91–93 Langley v Glandore Pty Ltd 64, 84–86
Bill William Pty Ltd v Williams 204 Lister v Romford Ice and Cold Storage Co Ltd
Bills 5 127
bioethics 26 Malette v Shulman 139, 141
420
Index
McCabe v Auburn District Hospital 77–80 Children and Young People Act 1999 (ACT) 162
Norton v Argonaut Insurance Company 80–81 Children and Young People Act 2008 (ACT) 168t
Public Advocate v RCS (Guardianship) 159 Children and Young Persons (Care and Protection)
Rae v Broken Hill Proprietary Co Ltd 207 Act 1998 (NSW) 162, 165, 167t, 168t
Rogers v Whitaker 52, 54, 58–61, 63, 98–99, Children’s Protection Act 1993 (SA) 168t
146 Childress, J. F. 34–35
Rosenberg v Percival 61 Civil and Administrative Tribunal Act 2008 (ACT)
Sayers v Harlow Urban District Council 174 322
Sha Cheng Wang v Central Sydney Area Health civil defamation 43
Service 73–77 civil law 9–10
Spasovic v Sydney Adventist Hospital 232 defendant in 10
Storey v Ashton 125 law of civil wrongs and 43
Tabet v Gett 104–105 monetary compensation in 10
Tasmanian dams case 7 one incident and 10–11
WorkChoices amendments case 7 plaintiff in 10
Catholic Church natural law view 2 standard of proof in 10
causation 46, 98–99 Civil Law (Wrongs) Act 2002 (ACT) 45t, 48–51,
‘but for’ test in 99–101, 104 54, 96–98, 110, 132
cases discussing 98–99 civil liability 58–59, 61–62, 295
Chappel v Hart discussing 98–99 Civil Liability Act 1936 (SA) 45t, 48–49, 55–56,
in Civil Liability Act 2002 (NSW) 98, 103 63, 96–98, 110, 133
in Finch v Rogers 103–104 Civil Liability Act 2002 (NSW) 45t, 48–49,
medical evidence finding 102 55–56, 59, 97, 99, 103, 105–106,
in negligence principle 98–99 109–110
probability in 105 compensation limits in 107
Rogers v Whitaker discussing 98–99 dangerous recreational activity defined in
CCO see continuing care order 49
Chaplin v Dunstan 125 duty of care in 48, 62
Chappel v Hart 59, 61, 98–99 good Samaritan defined in 132
Chelmsford Private Hospital 145, 175 harm defined in 95
Chief psychiatrist 411 mental harm defined in 95–97
child delivery 87–91 monetary compensation limits in 107
Child Protection Act 1999 (Qld) 168t principle of causation in 98, 103
Child Wellbeing and Safety Act 2005 (Vic) pure mental harm compensation in 97
168t standard of care from 58
children Western Australia and 57–58
blood removal from 311 Civil Liability Act 2002 (Tas) 48–49, 56, 63,
consent and 162–169 96–98, 110
detention of 168t, 176 Civil Liability Act 2002 (WA) 45t, 48–49,
emergency situations and consent for 166 57–58, 63, 96–98, 110, 133, 172t–173t
ethical decision-making for 310b Civil Liability Act 2003 (Qld) 45t, 48–49, 55,
legislation on detention of 176 61–63, 96, 98, 110, 132–133
medical treatment consent for 164 civil negligence 11, 43
non-regenerative tissue removal from 310 definition of 45
regenerative tissue donation of 309–310 legislative changes influencing 43–45
state care of 167 principles of 45–46
statutory provisions for 168–169 civil proceedings 11
territories and removal or detention of clinical collaboration 272
168t clinical considerations 219–222
treatment without parental consent of clinical incidents 240–243, 242b
168–169 Clinical Nurse Consultant 82
see also adults Code of Ethics for Midwives in Australia
Children, Young Persons and Their Families Act 277–278
1997 (Tas) 167, 168t Code of Ethics for Nurses in Australia 29–30
Children, Youth and Families Act 2005 (Vic) 162, Code of Professional Conduct for Midwives in
168t, 403 Australia 275, 277–278
Children and Community Services Act 2004 (WA) Codes, Guidelines and Statements 279
167, 168t committal proceedings 12–13
421
INDEX
common-law principles children’s treatment without parental

civil defamation in 43 168–169
death by negligence in 109 ECT without 175
development of 3–5 emergency situations and adult 160
good Samaritan covered in 131 emergency situations and child 166
public interest and 244 end-of-life treatment and 170–171
of Rogers v Whitaker 63 false imprisonment and 173–175
universal adoption of 5–6 forms for written 149–151, 150b
vicarious liability as 114–128 freely and voluntarily giving 144–145
Commonwealth of Australia (Cth) 6 guardianship and 158
Commonwealth of Australia Constitution Act 1901 healthcare professionals importance of
(Cth) 6, 8, 15 137–138
Communicating with Patients: Advice for Medical hierarchy of 158
Practitioners 141–142 human tissue live donation 305–310
communication 248 implied 142–143
community treatment order (CTO) 324, 414 informed 140–141, 146, 326–327, 355,
involuntary patient admission with 387 390
in Mental Health Act 2009 (SA) 377–378, informed patients required for 146–148,
387–388 147b–148b
mental health facilities breaching 346–347 legal capacity in 153–169
Mental Health Review Tribunal making medical treatment with 138–139, 143
345–347 Mental Health Act 1986 (Vic) ECT 399–400
treatment plan part of 346 Mental Health Act 1986 (Vic)
voluntary patient admission with 387 psychosurgery 401
community visitors 362–363, 382, 408–409 patients and right to restrain without
Community (Psychiatric Services) Visitors Board 171–177
409 psychosurgery with 372
Compensation to Relatives Act 1897 (NSW) 78, relevance of 138
109 state care of children and 167
Compensation to Relatives (De Facto Relationships) statutory provisions concerning 161, 166
Amendment Act 1984 (NSW) 109 treatment of spouse and 161
competent professional practice 63 by tribunal 157–158, 165
NMBA setting standards for 261–262 types of 142
of registered nurses 72–73 valid 142
standard of care of 71–72 verbal 143
complaint process 282b–283b, 284 witnessing signing forms of 150
compulsory conference 188–189 in writing 143–144
concurrent powers 6 Consent to Medical Treatment and Palliative Care
conduct Act 1995 (SA) 164, 167t, 172t–173t
below standard of care expectations 94 Consent to Treatment Policy for the Western
investigation of 282 Australian Health System 143–144
notifiable 151–152, 283 consequential mental harm 95–96
notifications 280–284, 280b–281b consequentialist theories 33
confidentiality constitutional corporation 188
of adverse events 248 contemporaneous reporting 230
breach of 244 continuing care order (CCO) 386
document 236–237 continuing professional development
of information 242–243 (CPD) 263–265, 264b
of medical records 237 contributory negligence 113
of patient’s records 236, 243–248 control test 115–117, 119
consent controlled substances 212–213, 216
adult 154–161 Convention on the Rights of Persons with
adults’ blood removal 310–311 Disabilities (CRPD) 154
adults’ lacking capacity for 154–159 coroner
adults’ regenerative tissue removal 308–309 criminal act conclusion of 292
capability of giving 355 law and 289–294
children and 162–169 patient’s death inquiry by 292
children’s blood removal 311 patient’s records used in hearings of 228
422
Index
reportable death and 291

role of 290 D
territorial court structure of 289 damages 107–109
Coroners Act 289–290, 293–294, 297 dangerous recreational activity 49
Coroners Act (NT) 289, 293–294, 306t–307t Dartmouth Atlas of Health Care 169
Coroners Act 1980 (NSW) 313 DCD see donation after cardiac death
Coroners Act 1985 (Vic) 306t–307t death
Coroners Act 2009 (NSW) 289, 293–294 anaesthetic 291
coroner’s inquest brain 311–312
Baxter death resulting in 68–73, 91–93 cardiac 311
in Bice death 91–93 coroner’s inquest from 68–73, 91–93
in child delivery negligence 87–91 coroner’s inquiry into 292
civil or criminal liability from 295 definition of 312
draft and formal statements for 297 employment contract and 189
in healthcare facilities 298 human tissue donation after 311–312
legal representation at 295 inquest statement of 291
negligence and 67, 71 medical procedure 291
negligence principle with 68–73, 87–93 by negligence 109
New South Wales Nurses’ Association patient’s 292
guidelines for 298–299 procedures after 297
nurse and midwife advice and 295–296 reportable 291–292
nursing staff ’s relevance of 294–296 decision-making
patient’s death with 292 adult’s financial 155
police force and 296 guardianship framework for 156t
police statements sought and 297 human tissue and organ donation 305–308
procedures prior to 296 legislation in jurisdictions for 155
recommendations coming from 293–294 nurses’ process of 31–32
reportable deaths leading to 290–291 nurses valuing informed 30–31
County Courts 13–14 declared mental health facility 334
court order 337 court order for admission to 337
court structure 12–14 examination requirements of 338–339
appeal process in 16 medical practitioner certificate admission in
hierarchical 11, 12f 336
legal expenses in 17 police apprehension and 337
Magistrates presiding over 13 primary carer requesting admission to 338
territorial 289 transfer from another 337
tribunals and 16 deep sleep therapy (DST) 142–145, 359
CPD see continuing professional development defence of volenti 138
crimes 19 defendant
coroner’s conclusion on 292 in civil law 10
drug access and 223 socially valuable activities of 48–49
elements of 19–20 definitions
intent and negligence in 20–23 of apologies 110
Crimes Act 1900 (NSW) 18 of approved treatment facility 354
Crimes Act 1914 (Cth) 407 of authorised mental health service 365–366
criminal law 8–9, 11 of civil negligence 45
development of 18–19 of consequential mental harm 95
nurses and 17–18 of death 312
one incident and 10–11 of disease 202
using patient’s records 227 of employment contract 181
criminal liability 295 of industrial relations 181
CRPD see Convention on the Rights of Persons of informed consent 390
with Disabilities of mental dysfunction 322
CTG monitoring 88 in Mental Health (Treatment and Care) Act
Cth see Commonwealth of Australia 1994 (ACT) 321–322
CTO see community treatment order in Mental Health Act 1986 (Vic) 392–394
cultural practices 28–31 in Mental Health Act 1996 (Tas) 383–384
Curtis, K. 152 in Mental Health Act 1996 (WA) 409–410
423
INDEX
in Mental Health Act 2000 (Qld) 364 Equal Opportunity Act 1995 (Vic) 185
in Mental Health Act 2007 (NSW) 331–333 Equal Opportunity Act 1984 (WA) 185
in Mental Health Act 2009 (SA) 375–376 legislation 185
in Mental Health and Related Services Act 1998 Racial Discrimination Act 1975 (Cth) 185
(NT) 352–354 Sex Discrimination Act 1984 (Cth) 185
of mental illness 322, 331–332, 352, 364, disease 201–202
383–384, 392–394, 409 distributive justice 36
of mentally disturbed 353 District or County Courts 13–14
of minor 162 diversity 30
of place of abode 203 doctrine of precedent 16–17
of place of employment 203 documentation
of practice 267 clinical incidents reported in 240–243
of psychosurgery 400 Consent to Treatment Policy for the Western
of public register terms 260t Australian Health System 143–144
of pure mental harm 96 incident reporting systems for 241t
of seclusion 405–406 integrity of 240
of worker 196 medication dosage 221
deontological theories 32–33 nurses and confidentiality of 236–237
Department of Health and Ageing 277 in nursing homes 237–238
depression 51 storage and security of 235
detention timeliness of 235
in approved treatment centre 376 donation after cardiac death (DCD) 312
of children 168t, 176 donor eggs 316
involuntary 325–326 DPP see Director of Public Prosecutions
in Mental Health Act 1986 (Vic) 394 draft statements 297
in Mental Health Act 1996 (Tas) 384–388 drivers’ licence scheme 313
in Mental Health Act 1996 (WA) 410 Drug Misuse and Trafficking Act 1985 (NSW)
in Mental Health Act 2007 (NSW) 343 18
in mental health facility 322–328, 334 drugs
of mentally disordered person 341 of dependence 217b
of mentally ill person 341–343 emergency situations and 220
in New South Wales Act 334 prescription and controlled 212–213
of patients 175–176 related errors of 211
in territories/states 168t self-administration of 223
detention and treatment order (DTO) 377–379 DST see deep sleep therapy
Devereux, J. 153–154 DTO see detention and treatment order
diabetic patients 222 duty of care
differential approach 28 from Civil Liability Act 2002 (NSW) 48, 62
Director General of Health 349, 351 of employer 194–198
Director of Public Prosecutions (DPP) 90 negligence through breach of 94–105
Disability Discrimination Act 1992 (Cth) 185 negligence with 46–47
disciplinary/fact-finding interview 298–299 non-delegable 128
discoverable 111
discrimination
Anti-Discrimination Act 1977 (NSW) 184 E
Anti-Discrimination Act (NT) 184 ECT see electroconvulsive therapy
Anti-Discrimination Act 1991 (Qld) 184 education provider 261
Anti-Discrimination Act 1998 (Tas) 185 e-health 240
Age Discrimination Act 2004 (Cth) 185 electroconvulsive therapy (ECT)
Australian Human Rights Commission Act 1986 without consent 175
(Cth) 185 for depression 51
Australian Human Rights Commission DST using 144–145
overseeing 185 involuntary patient procedure for 348, 361
complaints in relation to 185 maximum number of treatments 349
Disability Discrimination Act 1992 (Cth) 185 in Mental Health (Treatment and Care) Act
Discrimination Act 1991 (ACT) 184 1994 (ACT) 326–327
employment contract and 184–185 Mental Health Act 1986 (Vic) consent to
Equal Opportunity Act 1984 (SA) 184 399–400
424
Index
Mental Health Act 1986 (Vic) provisions for negligence and financial indemnity sought
398–399 by 127–128
in Mental Health Act 1996 (Tas) 390 negligence and motor vehicles provided
in Mental Health Act 1996 (WA) 414 by 125–127
in Mental Health Act 2000 (Qld) 371–372 personal liability of 128–129
Mental Health Act 2007 (NSW) provisions procedure directives and policies of 66–67
for 347–349 safe system of work provided by 192, 207–208
in Mental Health Act 2009 (SA) 380 Work Health and Safety Act and 194–198
in Mental Health and Related Services Act 1998 employment contract
(NT) 361 defining 181
Mental Health Review Tribunal approving use discrimination and 184–185
of 344 dispute causes of 188
voluntary patient procedure for 347–348 lawful and reasonable duty of 183
Eligible Midwife (EM) 263, 273-278 National Employment Standards and 187
endorsement qualifications and 276 obligations of 183–185
registration as 274b termination of 187, 189–192
Ellicott, R. J. 303–304 terms and conditions of 182–185
Elliott v Bickerstaff 86–87 unfair dismissal and reinstatement of 191–192
Ellis v Wallsend District Hospital 119–123 WorkChoices amendments and 186–187
ELS see English Language skills workplace health and safety in 192–193
EM see Eligible Midwife end-of-life treatment 159, 169–171
embryos, freezing 315–316 Endorsement as a Nurse Practitioner Registration
emergency department Standard 269–270
admission in 324–326 Endorsement for Scheduled Medicines 268
involuntary detention after 325–326 endorsements 268
triage in 75–77 EM and qualifications for 276
emergency examination order 368 NMBA issuing 269
Emergency Medical Operations Act 1973 as nurse practitioner 269–271, 270b
(NT) 167t scheduled medicine 275–276, 276b
emergency psychiatric treatment 412 English Language skills (ELS) 263, 279
emergency situations English Language Standard 259
adults and consent in 160 English legal system 1, 3, 5–8
children and consent in 166 epididymal and testicular sperm extraction
drug orders over phone in 220 315
emergency voluntary assessment 367–368 Equal Opportunity Act 1984 (SA) 184–185
employees Equal Opportunity Act 1984 (WA) 185
determining what constitutes 123–124 Equal Opportunity Act 1995 (Vic) 185
employer relationship with 181 e-records 228
fair treatment of 191–192 errors of judgment 84
independent contractor distinction ethical decision-making
between 181–182 children and dependent adults and 310b
injury of 201 evaluating 39–40
PCBU’s obligation to 196 fact-finding in 38
termination of 187, 190–191 in healthcare 36
vicarious liability doctrine’s designation of justifying 39
115–123 model for 37f
work performance of 189–190 morality and 26
workers compensation and 200–205 from NHMRC 309
workers compensation and termination of value systems in 36–38
206 Ethical Guidelines on the use of Assisted
see also worker Reproductive Technology in Clinical Practice and
employer Research 314
car for personal use from 126 ethical principles
contractual obligations of 184 autonomy as 34–35
duty of care of 194–198 beneficence as 35
employee relationship with 181 considerations in 38
‘in course of ’ and 202–204 justice as 36
lunch period injuries and 203 non-maleficence as 35
425
INDEX
ethical theories G
deontological 32–33 gamete intrafallopian transfer (GIFT) 315
modern feminist ethics as 33–34 gastroenteritis 91
teleological 33 General Guidelines for Medical Practitioners on
ethics Providing Information to Patients 146
cultural practices and 28–31 GIFT see gamete intrafallopian transfer
differential approach in 28 good Samaritan 131–133
good data and 31 Goold, Imogen 304–305
identifying conflicts in 39 graded assertiveness 152, 153f
law’s relationship with 25 guardianship 155, 156t, 158
modern feminist 33–34 Guardianship Act 1987 (NSW) 156t, 158, 332,
NMBA setting standards for 261–262 334–335, 339
nurses facing dilemmas of 27 Guardianship and Administration Act 1986
systematic approach to 26–28 (Vic) 155–156, 156t, 393
tissue and organ donation with 308b Guardianship and Administration Act 1990
euthanasia 170 (WA) 156t, 172t–173t
evidence 232–233 Guardianship and Administration Act 1993
-based guidelines 279 (SA) 156–157, 156t, 375–376, 380
expert 63–64 Guardianship Board set up in 380–381
expert evidence 63–64 in Mental Health Act 2009 (SA) 375
Exposure Draft Mental Health Bill 2010: Public Advocate created by 382
Explanatory Guide 392 Guardianship and Administration Act 1995 (Tas)
expressed regret 110 156t, 172, 384
expression of guilt 110 Guardianship and Administration Act 2000 (Qld)
156t, 157–158
Guardianship and Management of Property Act
F 1991 (ACT) 155, 156t
fact-finding 38 Guardianship Board 380–382
Fair Work Act 2009 (Cth) 186–188, 190 guilt, expression of 110
false imprisonment 171–175
defences to 175
lawful arrest and 175 H
Family Court of Australia 15 Halverson, Kurt 58
Family Law Act 1975 (Cth) 15 Halverson v Dobler 58–59
Federal Court of Australia 15 handwritten records 239–240
Federal Court of Australia Act 1976 (Cth) 15 harm 95, 98
Federal Magistrates Act 1999 (Cth) 14–15 Hart v Herron 142–143, 175
Federal Magistrates Court 14–15 hazards 195
Federation, creation of 6 Health Administration Act 1982 (NSW)
feminist moral theories 32 242–243
feminist philosophies 33–34 Health Care Liability Act 2001 (NSW) 131
financial indemnity 127–128 health law 6
Finch v Rogers 103–104 Health Legislation Amendment (Midwives and
first-aid officer 202 Nurse Practitioners) Act 2010 (Cth) 271–272
Fitzroy Legal Service Inc 141–142 health practitioner 268
fluid balance Health Practitioner Regulation (Consequential
chart 68–69, 69f–70f, 71–72 Amendments) Act 2010 (Cth) 7
requirements 72 Health Practitioner Regulation National Law
foetal heart rate monitoring 88 (NSW) 130–131
forensic patients 344, 389 Health Practitioner Regulation National Law (WA)
forensic practices 313–314 411
Forensic Tribunal 389 Health Practitioner Regulation National Law
formal statements 297 Act 2009 (Qld) 151–152, 222–223, 253–254
4 George 4 1823 (UK) 5–6 Health Professionals Council Authority
fraud 240 (HPCA) 255–256, 284
Freckleton, I. 40 Health (Drugs and Poisons) Regulation 1996
freedom of press 2–3 216
freedom of speech 2–3 health service electronic systems 237
426
Index
healthcare organ donation and 305–308, 308b

breach of confidentiality in 244 post-mortem examinations and 313–314
categories of urgent 157 territories with donation provisions for
committal proceedings in 12–13 306t–307t
ethical decision-making in 36 Human Tissue Act 1982 (Vic) 167t, 306t–307t,
graded assertiveness in 152 312–313
professional negligence in 45–112 Human Tissue Act 1983 (NSW) 306t–307t, 311,
urgent 157 313
healthcare facilities Human Tissue Act 1985 (Tas) 167t, 306t–307t,
abbreviations used in 230 312
coroner’s inquest in 298 Human Tissue Acts 304–305
integrated report writing in 231 Human Tissue and Anatomy Legislation
Healthcare Identifiers Act 2010 (Cth) 239 Amendment Bill 2003 313
healthcare professionals Human Tissue and Transplant Act 1982
conduct notifications about 280b–281b (WA) 166–167, 167t, 306t–307t, 310, 312
consent important to 137–138 human tissue transplantation
disciplinary/fact-finding interview of 298–299 background of 301–302
expert evidence from 63–64 legislation of 303–304
information available assisting 141–142 organ donation and 301–302
information responsibilities of 151–152 organ donation availability for 302b
negligence and standard of care from 50, 63 Human Tissue Transplants 303–304
notifiable conduct of 151–152, 283 hydration 157–158
professional indemnity for 129–133
registration of 6–7
standard of care for 50 I
standards developed for 64–65 ICSI see intracytoplasmic sperm injection
valuable resources for 141–142 IDRS see Intellectual Disability Rights Service
health-related procedure 290–291 Iedema, R. 140
Henry II 3–5 IHI see individual healthcare identifier
Herd v Weardale Steel Co 175 implied consent 142–143
Herring, J. 27 in the course of employment 202–204
hierarchical court structure 11, 12f incident reporting systems 241t
High Court of Australia 15–16 indemnity 115
HIV testing 66 financial 127–128
Hollis v Vabu Pty Ltd 116 for healthcare professionals 129–133
homosexuality 18 insurance 130
hospitals 29 independent contractor 115–116
authorised 409–412 employee distinction between 181–182
involuntary admission in 385 nurse as 129
negligence liability of 117–118, 122–123 indictable offences 19
patient restraint and 175–177 individual healthcare identifier (IHI) 239
patient signature witnessing in 150–151 industrial award 186–189
voluntary admission in 384–388 industrial law 181–182
see also healthcare facilities industrial relations 181
Hospitals and Health Services Act 1927 (WA) 410 Industrial Relations Commission 186–187
Hotson, Stephen 101–102 information
Hoy, Samara Lea 87–91 confidentiality of 242–243
HPCA see Health Professionals Council Authority divulging patient 237
human rights 154–155 healthcare professionals and patients assisted
human tissue by 141–142
Australia’s legislation of 304–305 healthcare professionals’ responsibilities
classification of 302, 303t and 151–152
donation after death of 311–312 nurses providing treatment 149
law relative to use of 303–312 patient consent and required 146–148,
live donation consent of 305–310 147b–148b
from living person 303 patients receiving procedure 145–153,
NHMRC donation guidelines concerning 305, 178
308b responsibility of giving patients 148–152
427
INDEX
standard of care cases and 59–63 judges, role of 9, 13

treatment 59–63, 146 jurisdictions
Information Privacy Principles 246 District or County Courts in 13–14
informed consent 140–141, 146, 326–327, 355, Family Court of Australia in 15
390 Federal Court of Australia in 15
injuries 201 Federal Magistrates Court in 14–15
assaulted at work and 204 High Court of Australia in 15–16
lunch period 203 legislation for decision-making in 155
sporting activities incurring 204 life-sustaining treatment in 158
at trade school 204 Local Courts in 12–13
work-related 206–207 of Mental Health Review Tribunal 370–371
insulin therapy 222, 359 justice 36
insurance premiums 44 justices examination order 366–367
integrated recordkeeping 231
intellectual disability
in Australian Capital Territory 321–322 K
in South Australia 320, 376 K v Minister for Youth and Community
Intellectual Disability Rights Service Services 165
(IDRS) 154–155 Katelaris, Andrew 73–74
intent 20–23 Kerridge, I. 26–27, 36
interim community management order 358–359 beneficence and 35
intracytoplasmic sperm injection (ICSI) 315 consequentialism theory and 33
intrinsicalist theories see deontological theories deontological theory and 32–33
in-vitro fertilisation (IVF) 304, 315 feminist philosophies from 33–34
involuntary admission kidney transplant 301
in approved hospital 385 King, Catherine 301–302
in approved treatment centre 376–377 King’s law 4, 16–17
in Mental Health Act 1986 (Vic) 394–396 Kirby, Michael 26, 31, 61
in Mental Health Act 1996 (WA) 410–412, Korsakoff’s psychosis 158–159
415
in Mental Health Act 2000 (Qld) 365–366
mental health and 323 L
in Mental Health and Related Services Act 1998 Langley v Glandore Pty Ltd 64, 84–86
(NT) 357–358 law
in mental health facilities 336–339, 343 administration of 11–17
Mental Health Review Tribunal treatment and civil 9–10
review of 357–358 of civil wrongs 43
mental illness and 355–357 Coroner’s position and 289–294
involuntary detention 325–326 criminal 8–9
involuntary manslaughter 23 of equity 4
involuntary patients 159–160 ethics’ relationship with 25
CTO admission of 387 expenses incurred in 17
ECT procedure for 348, 361 health 6
legal rights given to 391 human tissue usage and 303–312
involuntary treatment order (ITO) 368–369, medical treatment and 140
394–396 philosophies in 2–3
Ipp, David 44 as rules of behaviour 1–2
Ipp Committee 44 in society 1–3
Ipp Report 50 workplace health and safety in 192
irrational behaviour 333–334 Law Reform Act 1995 (Qld) 132–133
Ison v Northern Rivers Area Health Service 81–84 lawful arrest 175
ITO see involuntary treatment order legal capacity 153–169
IVF see in-vitro fertilisation legal representation 295
legislation
child detention in 168t, 176
J civil liability 58–59, 61–62, 295
Jehovah’s Witness patient 139–140, 160, 162 civil negligence influenced by 43–45
Johnstone, M-J. 26–28, 32, 34 decision-making in jurisdictions with 155
428
Index
discrimination 185 medical practitioner

guardianship framework decision-making 156t certificate admission by 336
of human tissue transplantation 303–304 negligence and orders of 91–94
medications controlled by 212 nurse discussing concerns with 93–94
on mental health 159–160, 319 obligations of 47
National Registration and Accreditation pathology tests by 79
Scheme and 253–254 statutory obligations of 65–66
negligence and obligations through 65–66 medical procedure death 291
negligence and standard of care from 54–58 medical records
occupational health and safety in 193–200 confidentiality of 237
Parliamentary law and 5 inadequate maintenance of 89–90
patient’s records access 246–247 nurse’s negligence in maintaining 77–80
poison control through 211 of patients 67
professional negligence and relevant 45t medical terminology 230
workplace health and safety 198 medical treatment
LHNs see Local Health/Hospital Networks consent of child for 164
liability 47, 106 consent to 138–139, 143
civil 58–59, 61–62, 295 legal actions from 140
criminal 295 in Mental Health Act 1996 (Tas) 390
negligence and 117–118, 122–123 in Mental Health Act 2007 (NSW) 349–350
personal 128–129 of minors 165–166
see also vicarious liability right to refuse 169
life-sustaining treatment 158 unforeseen problems in 140
Limitation of Actions Act 1958 (Vic) 112 Medical Treatment Act 1988 (Vic) 161, 171,
limitation periods 111–112 172t–173t, 403
Limitations Act 1969 (NSW) 111 Medical Treatment (Health Directions) Act 2006
LIS see locked-in-syndrome (ACT) 172t–173t
Lister v Romford Ice and Cold Storage Co Ltd 127 Medicare 6, 239
live donations 305–310 Medicare Benefits Schedule (MBS) 271–272
living wills 170 Medication Safety Program 218
LOC see loss of consciousness medications
Local Courts 12–13 administrative considerations of 218–219
Local Courts Act 1982 (NSW) 12 clinical considerations administering 219–222
Local Health/Hospital Networks dosage and documenting 221
(LHNs) 233–234 legislation controlling 212
locked-in-syndrome (LIS) 158–159 Mental Health Act 2007 (NSW) standards for
loss of consciousness (LOC) 74 351–352
Lowe, M. 26–27 national registration scheme for 222–223
lunch period injuries 203 negligence in administration of 80–81
nurse prescribing 124, 211
nurses’ access and use of 223
M as poisons 211
Magistrates Courts 12–13 problem areas involving 218
Making a Decision about Living Organ and Tissue restricted access to 217
Donation 305–308 statutes and regulations governing 224–226
Malette v Shulman 139, 141 storage and transport of 217b
mandatory notifications 283 see also drugs
manslaughter 21–23 medico-legal litigation 59
Marion’s case 163 mental disturbance 355
master/servant terminology 115 mental dysfunction 322
maternity service 278–279 mental harm 96–97
Maternity Services Review 273 mental health
MBS see Medicare Benefits Schedule Australian Capital Territory legislation on 320
McCabe v Auburn District Hospital 77–80 examination requirements for 338–339
McMahon, M. 166 illness and treatment in 320–321
mechanical restraint 360, 403–405, 413 involuntary application and 323
Medical Board of Australia 90 irrational behaviour and 333–334
medical examination 337 legislation on 159–160, 319
429
INDEX
mental illness and 322, 331–332, 352, 364, community care order in 386
383–384, 392–394, 409 definitions in 383–384
mentally disordered person and 333–334 ECT in 390
mentally disturbed as 353 Forensic Tribunal in 389
patients’ treatment plans for 369–370 forms and treatment types in 390–391
psychiatric examination 356 medical treatment in 390
Public Advocate’s office and 329 official visitors in 391–392
restriction order in 324 patient rights in 391
territories’/states’ legislation on 321–416 psychosurgery in 390
United Nations’ principles on 319–320 restraint in 391
voluntary application and 322 seclusion criteria in 391
Mental Health Act 7, 342 Mental Health Act 1996 (WA)
Mental Health Act 1986 (Vic) admission and detention in 410
admission and detention in 394 appeal rights in 416
appeal process in 407–408 definitions in 409–410
community visitors in 408–409 ECT in 414
decision review in 397–398 emergency psychiatric treatment in 412
definitions in 392–394 forms and treatment types in 414
ECT consent in 398–400 involuntary admission in 410–412, 415
forms and treatment types in 398–403 Mental Health Review Board established
involuntary admission or treatment in by 415–416
394–396 official visitors in 415
Mental Health Review Board from 396–397, patient rights in 415
407–408 psychosurgery in 414
non-psychiatric treatment in 402–403 restraint in 413
patients’ rights in 406–408 seclusion criteria in 412–413
psychosurgery in 400–402 treatments prohibited in 414
psychosurgery consent in 401 Mental Health Act 2000 (Qld)
restraint in 403–406 appeal rights in 375
seclusion in 405–406 assessment in 365–366
in Victoria 392 authorised mental health practitioner in
Victorian Mental Health Review Board 365–366
from 396–398 authorised mental health service defined in
Mental Health (Forensic Provisions) Act 1990 365–366
(NSW) 337, 339 definitions in 364
Mental Health (Treatment and Care) Act 1994 ECT in 371–372
(ACT) emergency voluntary assessment in 367–368
admission and detention in 322–328 forms and types of treatment in 371–372
appeal rights in 328–329 involuntary admissions in 365–366
assessment in 323–324 involuntary treatment order in 368–369
in Australian Capital Territory 321–322 justices examination order in 366–367
committee in 327–328 Mental Health Review Tribunal in
community treatment order in 324 370–371
definitions under 321–322 patient’s rights in 374–375
ECT in 326–327 Police Powers and Responsibilities Act 2000 in
emergency admission in 324–326 367
informed consent in 326–327 in Queensland 363–375
inspectors in 330 restraint and seclusion in 372–374
involuntary application in 323 Statement of Rights in 374
official visitors in 329–330 treatment plans in 369–370
patient rights in 328–329 treatments prohibited by 372
psychiatric surgery in 326–328 Mental Health Act 2007 (NSW) 331–334, 347
psychiatric treatment order in 323 appeal process in 345, 347
tribunal obligations in 326 definitions in 331–333
voluntary application in 322 detention and 343
Mental Health Act 1996 (Tas) ECT provisions in 347–349
admission and detention in 384–388 forms and treatment types in 345
assessment in 385–386 medication standards in 351–352
430
Index
in New South Wales 320–321 voluntary admission in 334–336, 342–343,

official visitors in 351 354–355
patient rights in 350–351 voluntary patient and 355
primary carer under 339–340 mental health order 322–323, 349
special medical treatment in 349–350 Mental Health Review Board 396–397, 407–
standard of care reviews in 351–352 408, 415–416
Supreme Court appeal in 345, 347 Mental Health Review Tribunal 336, 338
surgical operation in 349 community care order admission and 386
Mental Health Act 2009 (SA) community treatment order made by 345–347
appeal process in 382 composition of 343
approved treatment centre in 376 ECT use approved by 344
community treatment order in 377–378, inquiry procedure of 348–349
387–388 interim community management order in
community visitors in 382 358–359
definitions in 375–376 involuntary admission treatment and review by
ECT allowed for in 380 357–358
Guardianship and Administration Act 1993 (SA) jurisdiction of 370–371
in 375 in Mental Health Act 2000 (Qld) 370–371
Guardianship Board appeal process in 382 in mental health facility 336
neurosurgery in 380–381 procedures used by 344–345
patient’s rights in 381–382 right to appeal to 354
restraint in 376–377 role of 344, 363, 388–389
in South Australia 375–382 seclusion guidelines in 391
Mental Health and Related Services Act 1998 Statement of Rights for 342, 350–351
(NT) mental illness 322, 331–332, 352, 364, 383–
approved treatment facility in 354 384, 392–394, 409
community visitors in 362–363 detention of person with 341–343
definitions in 352–354 involuntary admission based on 355–357
ECT permitted in 361 Statement of Rights and 342
forms and treatment types in 358–359 mental incapacity 375–376, 382
involuntary admission in 357–358 mentally disordered person 333–334, 341
non-psychiatric treatment in 361–362 mentally disturbed 353
in Northern Territory 352–354 midwives 259–260
patient rights in 362 additional accreditation hours required for
seclusion in 361 275
treatment regulation and prohibition in conduct notifications and complaints
359–362 about 280–284
Mental Health Court 370–371 coroner’s inquest and advice for 295–296
mental health facility National Law practitioner endorsement for,
admission and detention in 322–328, 286
334 professional indemnity insurance for
ambulance officer and 336–337 277–279
appeal rights in 329 professional regulatory mechanism for 273
assessable person in 339 regulation of 272–279
care and appeal mechanisms in 328–329 scheduled medicine endorsements for 275–
community treatment order breached by 276, 276b
346–347 see also Eligible Midwife
declared 334 minors
discharge of voluntary admissions from consent and 162–169
335–336 consent and emergency situations of 166
Guardianship Act 1987 and 335 consent and state care of 167
involuntary admission in 336–339, 343 definition of 162
medical examination in 337 medical treatment of 165–166
Mental Health Review Tribunal in 336 Minors (Property and Contracts) Act 1970
New South Wales Act detention in 334 (NSW) 164
official visitors in 329–330 modern feminist ethics 33–34
private 330 monarchy 5
restraint and seclusion in 372–374 monetary compensation 44
431
INDEX
battery with 141 public protection from 254

in civil law 10 structure of 257f
Civil Liability Act 2002 (NSW) limits of uniformity from 259
107 national registration scheme 222–223
negligence requiring 107–109 Natural Death Act 1988 (NT) 172t–173t
pure mental harm resulting in 97 natural law philosophies 2–3
morality 26 negligence
motor traffic offences 18 allegation denial or rebuttal of 112
motor vehicles 125–127 assault and battery compared to
murder 22 138–139
mutual consent 190 civil wrongs with 43
common-law principles and 109
contributory 113
N coroner’s inquest and 67, 71
National Boards criminal 20–23
active 255–256 death by 109
AHPRA assisting 256b defending allegations of 112–114
functions of 257b–258b degree of 22
The National Code of Ethical Autopsy employer’s financial indemnity sought
Practice 313–314 from 127–128
National Competency Standards for the employers providing motor vehicles
Midwife 275, 277–278 and 125–127
National Competency Standards for the Nurse harm caused by 98
Practitioner 272 hospital’s liability of 117–118, 122–123
National E-Health Transition Authority Limited liability limits on 106
(NEHTA) 238–240 monetary compensation resulting from
foundations for 239 107–109
handwritten records in 239–240 plaintiff establishing claim of 45–46
National Employment Standards 187 reckless 23
National Health and Medical Research Council standard of care and 50, 94
(NHMRC) 141–142 time limits or limitation periods in
ethical decision-making from 309 111–112
human tissue and organ donation guidelines vicarious liability and 114–128
from 305, 308b voluntary assumption of risk and 114
patient consent information guidelines from negligence principle 1 46
146 academic publications in 67
therapeutic privilege guidelines from civil liability legislation in 58–59
152–153 coroner’s inquest in 68–73, 87–93
National Inpatient Medication Chart 218 duty of care owed in 46–47
National Law 130, 266 emergency department triage in 73–77
Endorsement for Scheduled Medicines under employer policy and procedures in 66–67
268 healthcare professionals and 50, 63
mandatory notifications required by 283 legislative obligations in 65–66
midwife practitioner endorsement from 286 legislative provisions relevant to 54–58
NMBA standards of 262–263 medical practitioner’s orders in 91–94
objectives of 254 medical team competence in 86–87
scheduled medicine endorsements under 275– medication administration in 80–81
276, 276b nursing staff record-keeping in 77–80
National Mental Health Statement of Rights and operating theatre standards in 84–86
Responsibilities 320 outside of work 47–50
National Midwifery Guidelines for Consultation patient medical records in 67
and Referral 275 peer expert evidence and 63–64
National Nursing and Midwifery Board 7 peer professional competence in 50
National Registration and Accreditation Scheme professional standards development in
(NRAS) 7, 253–254 64–65
CPD and 263–265 standard of care approach in 67–68
national online registers from 259 treatment information in 59–63
principles of 256–271 Women’s Health Nurse and 81–84
432
Index
negligence principle 2 94 limitation periods in 111

negligence principle 3 94 Mental Health and Related Services Act 1998 in
Barnett v Chelsea and Kensington Hospital 352–354
in 99–101 Personal Injuries (Liabilities and Damages) Act
causation in 98–99 2003 in 110–111
duty of care breached in 94–105 public health or safety in 293–294
Finch v Rogers in 103–104 standard of care in 58
mental harm in 96–97 Supreme Court appeals in 363
patient suffering damages in 94–97 Norton v Argonaut Insurance Company 80–81
Tabet v Gett and 104–105 notifiable conduct 151–152, 283
negligence principle 4 105–107 notifiable incident 198
NEHTA see National E-Health Transition NP see nurse practitioners
Authority Limited NP Safety and Quality Framework (NP SQF)
neurosurgery 380–381 270–271
New South Wales (NSW) NRAS see National Registration and Accreditation
Anti-Discrimination Act 1977 of 184 Scheme
apology as admission of guilt in 109–110 NSW see New South Wales
Civil Liability Act 2002 of 55 NSWLRC see New South Wales Law Reform
Compensation to Relatives Act 1897 in 109 Commission
complaint system of 284 NT see Northern Territory
end-of-life care regime in 159 nurse practitioners (NP) 263, 269–272
Industrial Relations Commission in 186 nurses
information confidentiality in 242–243 clinical incidents reporting of 243
limitation periods in 111 conduct notifications and complaints about
Mental Health Act 2007 in 320–321 280–284
motor traffic offences in 18 controlled substance requirements of
personal injury claims in 108 216
policy directive PD2005_406 of 148–149 coroner’s inquest and advice for 295–296
professional indemnity insurance mandatory in coroner’s inquest relevance to 294–296
131 criminal law and 17–18
public health or safety in 293–294 decision-making process of 31–32
pure mental harm compensation in 97 diversity valued by 30
standard of care in 55 documentation and confidentiality advice to
Statement of Rights in 350–351 236–237
Work Health and Safety Act of 193–194 ethical dilemmas facing 27
New South Wales Act as good Samaritans 131–133
mental health facility detention in 334 as independent contractors 129
police force and 395 informed decision-making valued by 30–31
New South Wales Law Reform Commission MBS and PBS access of 271–272
(NSWLRC) 163 medical practitioner discussing concerns with
New South Wales Legislative Council 6 93–94
New South Wales Ministry of Health 149 medication access and use by 223
New South Wales Nurses’ Association medication prescribed by 124, 211
298–299 negligence and duty of care of 46–47
NHMRC see National Health and Medical negligence and record-keeping of 77–80
Research Council patients’ records as evidence and 232–233
NMBA see Nursing and Midwifery Board of patients’ records read by 231–232
Australia patients’ reports by 227
non-compliance penalties 199 poor quality patients’ records of 233
non-delegable duty of care 128 practitioner 270b
non-maleficence 35 registered 220–221
non-psychiatric treatment 361–362, 402–403 regulations and 214
non-regenerative tissue 302, 309 Schedule 4 substances and 212–213
Northern Territory (NT) Schedule 8 substances and 212–213
anaesthetic deaths in 291 separate registers for 259–260
Anti-Discrimination Act of 184 standard of care concerns of 151
expression of guilt term used in 110 standard of care expected of 63
good Samaritan defined in 132 surgical instrument responsibilities of 84–86
433
INDEX
treatment information provided by 149 paternalism 35

up-to-date professional practice of 266–268 pathology tests 79
Nursing and Midwifery Board of Australia patients
(NMBA) 29, 211–212, 243, 254–256 blood transfusions and 137, 160–161,
Codes, Guidelines and Statements from 279 166–167, 167t, 178
competent professional practice and 261–262 changing condition of 91–92
endorsements issued by 269 committal proceedings of 12–13
establishing 261 consent freely and voluntarily given by
evidence-based guidelines from 279 144–145
National Law standards of 262–263 consent information required by 146–148,
performance review by 275 147b–148b
position statement of 271 coroner’s inquiry into death of 292
standards set by 261–262 damages suffered by 94–97
nursing homes 237–238 death 292
detention of 175–176
diabetic 222
O discharge of voluntary 335–336
OAIC see Office of the Australian Information divulging information about 237
Commissioner forensic 344, 389
obiter dicta 16–17 hospitals and signatures of 150–151
observation chart 72–73 information available assisting 141–142, 178
occupational health and safety 193–200 information-giving responsibility to 148–152
Occupational Therapists Act 2005 (WA) 411 mental health legislation for 159–160
OD see open disclosure mental health treatment plans for 369–370
Office of the Australian Information negligence and medical records of 67
Commissioner (OAIC) 240, 246 NHMRC consent guidelines for 146
official visitors nurses’ reports on 227
functions of 392 OD of adverse event of 247–248
in Mental Health (Treatment and Care) Act procedures explained to 145–153, 178
1994 (ACT) 329–330 restraint of 175–177
in Mental Health Act 1996 (Tas) 391–392 risk information provided to 147
in Mental Health Act 1996 (WA) 415 voluntary admission of 334–336, 342–343,
in Mental Health Act 2007 (NSW) 351 354–355
in mental health facility 329–330 voluntary and involuntary 159–160
onus of proof see burden of proof patients’ records
open disclosure (OD) 140, 247–248 abbreviations in 230
operating theatre standards 84 complete and comprehensive 236
opting-in system 313 confidentiality of 236, 243–248
Organ and Tissue Donation by Living Donors: considerations in writing 228–231
Guidelines for Ethical Practice for Health contemporaneous reporting for 230
Professionals 309 coronial hearings using 228
organ donation criminal proceedings using 227
cards for 313 integrated recordkeeping in 231
human tissue and 305–308, 308b legislation regarding access to 246–247
human tissue transplantation and 301–302, nurses reading 231–232
302b patients’ right of access to 245–248
issues with 312–316 poor quality 233
NHMRC donation guidelines concerning 305, principles and guidelines for 233–237,
308b 234b–235b
organisation test 117 reducing incorrect entries in 230–231
ovulation induction 315 restraint details in 373
sleep status reporting in 229–230
statement of facts in 229
P used as evidence in court 232–233
Pap smears 81–83 see also medical records
parens patriae jurisdiction 158 patients’ rights 328–329
Parker, M. 153–154 in Mental Health Act 1986 (Vic) 406–408
Parliamentary law 5 in Mental Health Act 1996 (Tas) 391
434
Index
in Mental Health Act 1996 (WA) 415 Powers of Attorney Act 1998 (Qld) 156t
in Mental Health Act 2000 (Qld) 374–375 PPMs see privately practising midwives
in Mental Health Act 2007 (NSW) 350–351 Practical Ethics (Singer) 27–28
in Mental Health Act 2009 (SA) 381–382 practice, defining 267
in Mental Health and Related Services Act 1998 practitioner’s registration 260t
(NT) 362 presumption of innocence 18–19
to refuse treatment 170–171 primary carer
to restraint without consent 171–177 declared mental health facility request of 338
PBS see Pharmaceutical Benefits Scheme Mental Health Act 2007 (NSW) and 339–340
PCBU see person conducting a business or nomination of 340
undertaking Principles for Creation, Management, Storage and
PCEHR see Personally Controlled Electronic Disposal of Health Care Records 234b–235b
Health Records Privacy Act 1988 (Cth) 246
peer expert evidence 63–64 Privacy Amendment (Private Sector) Act 2000
peer professional opinion 50–51, 63, 67 (Cth) 247
person conducting a business or undertaking private mental health facilities 330
(PCBU) 194, 196 privately practising midwives (PPMs) 277–278
Personal Injuries (Liabilities and Damages) Act probability, in causation 105
2003 (NT) 45t, 49, 96, 110–111, 132 problems
personal injury 95, 192 identifying 36–38
personal injury claims 108 in medical treatment 140
personal liability 128–129 medications with 218
Personally Controlled Electronic Health Records perspective on 38–39
(PCEHR) 239 professional indemnity insurance (PII) 277–279
Petersen, K. 40 New South Wales’ mandatory 131
Pharmaceutical Benefits Scheme (PBS) 6, 211, registration standards of 265–266, 265b
271–272 professional indemnity policy 120
physical examination 74 Professional Indemnity Review 130
PII see professional indemnity insurance professional negligence
PIN see Provisional Improvement Notice grounds for 53
Piper, D. 140 in healthcare 45–112
place of abode 203 legislation relevant to 45t
place of employment 203 Prohibition of Human Cloning for Reproduction Act
plaintiff 2002 (Cth) 314
in civil law 10 Provisional Improvement Notice (PIN) 197–198
negligence claim of 45–46 psychiatric examination 356
poisons 211 psychiatric surgery 326–328
schedules of 213t psychiatric treatment order 323–324
toxicity of 212 psychosurgery 359, 400–402
Poisons Act and Regulations 65, 223 consent for 372
Poisons and Therapeutic Goods Act 1966 (NSW) 5 definition of 400
Poisons and Therapeutic Goods Regulation 2008 Mental Health Act 1986 (Vic) consent for 401
(NSW) 213–214 in Mental Health Act 1996 (Tas) 390
Poisons Standard 212 in Mental Health Act 1996 (WA) 414
police force Psychosurgery Review Board 402
coroner’s inquest and 296 Public Advocate 382
coroner’s inquest and statements sought by Public Advocate v RCS (Guardianship) 159
297 Public Advocate’s office 329
declared mental health facility delivery by 337 Public Health Act 1991 (NSW) 47, 65–66
New South Wales Act and 395 Public Health (General) Regulation 2002 (NSW)
reportable deaths and 291 65
responsibilities of 18–19 public health or safety 293–294
rules of behaviour enforced by 8–9 Public Hospitals Act 1929 (NSW) 121
Police Powers and Responsibilities Act 2000 (Qld) public interest 244
367 public notification 281, 282b–283b
Position Statements 271, 279 public protection 254
positive law philosophies 2 public register 260t
post-mortem examinations 297, 313–314 public register terms 260t
435
INDEX
Publications regret, expressed 110

Communicating with Patients: Advice for regulations 5, 214
Medical Practitioners 141–142 medications governed by 224–226
NMBA Code of Conduct 243 of midwifery 272–279
NMBA Code of Ethics 243 nurses and 214
pure mental harm 96–97 Schedule 4 restricted substances with 214–215
Schedule 8 controlled substances with
215–216
Q religious beliefs 160–161
Qld see Queensland reportable deaths
Quality in Australian Health Care Study coroner and 291
(QAHCS) 241 coroner’s inquest from 290–291
Quarantine Act 1908 (Cth) 176 notification of 291–292
Queensland (Qld) police force and 291
allied person term used in 374 toxicology results in 291
Anti-Discrimination Act 1991 of 184 reproductive tissue 314–316
Civil Liability Act 2003 of 55 Research Involving Human Embryos Act 2002
expression of guilt term used in 110 (Cth) 314
good Samaritan defined in 132–133 restraint
limitation periods in 111 bodily 359–361
medical procedure death in 291 without consent 171–177
Mental Health Act 2000 in 363–375 hospital’s defences concerning 175–177
public health or safety in 293–294 intentional and complete 174–175
standard of care in 55 mechanical 360, 403–405, 413
Statement of Rights in 374 in Mental Health Act 1986 (Vic) 403–406
Work Health and Safety Act of 193–194 in Mental Health Act 1996 (Tas) 391
Queensland Guardianship and Administration in Mental Health Act 1996 (WA) 413
Tribunal 158 in Mental Health Act 2000 (Qld) 372–374
Qumsieh (or Q’s case) 161 in Mental Health Act 2009 (SA) 376–377
in mental health facility 372–374
of patients 175–177
R patient’s consent and right to 171–177
Racial Discrimination Act 1975 (Cth) 185 patient’s records details of 373
Rae v Broken Hill Proprietary Co Ltd 207 see also detention
ratio decidendi 16–17 restriction order 324
RCA see root cause analysis rights
Re C (Adult: Refusal of Treatment) 153–154 to appeal process 354
Re L case 162 false imprisonment and 173–175
Re T case 162 human 154–155
reasonable condition 175 involuntary patients getting statement of 391
reasonable foreseeability of harm 47–48 medical treatment refusal 169
reasonably foreseeable consequence 105–107 Mental Health Review Tribunal appeal 354
reasonably practicable 195 patient records access 245–248
recency of practice (RoP) 263, 266–268, 267b patient restraint without consent and
reckless negligence 23 171–177
redundancy 190 of patients 328–329
regenerative tissue 302, 308–310 patients refusing treatment 170–171
Register of Midwives 273–274 SQF’s statements concerning woman’s 278
registered nurse 220–221 see also patient’s rights; Statement of Rights
competent professional practice of 72–73 risks
fluid balance requirements awareness of 72 analysis 195
overdose from 292 information provided on 147
Registration Standard for Eligible Midwives 273 procedure warnings about 60–61, 63
registration standards 263, 264b voluntary assumption of 114
of EM 274b Road Traffic Act 1961 (SA) 161
of nurse practitioner 270b Road Transport (Safety and Traffic Management)
of PII 265–266, 265b Act 1999 (NSW) 18
of RoP 266–268, 267b Roe v Minister for Health 117–118
436
Index
Rogers v Whitaker 60 expression of guilt term used in 110

causation discussed in 98–99 forensic practice reviews in 313–314
facts of 52 good Samaritan defined in 133
medico-legal litigation and 59 intellectual disability in 320, 376
procedure risk warnings in 60–61, 63 limitation periods in 111
standard of care from 54, 58–59 Mental Health Act 2009 in 375–382
treatment information and 146 public health or safety in 293–294
root cause analysis (RCA) 242–243 standard of care in 55–56
RoP see recency of practice Statement of Rights in 376–377
Rosenberg v Percival 61 South East Asian Region of the World Health
Royal Commission into Deep Sleep Therapy 144 Organisation (SEARO WHO) 236
rules of behaviour 1–2, 8–9 sovereignty 3
Spasovic v Sydney Adventist Hospital 232
special medical treatment 349–350
S sperm, freezing 315–316
SA see South Australia sporting activities 204
SAC see Severity Assessment Code spouse, treatment of 161
safe system of work 207–208 Spycatcher case 244
Safe Work Act 2008 (Cth) 193 SQF see Safety and Quality Framework
Safe Work Australia 193 Standard for the Uniform Scheduling of
Safety and Quality Framework (SQF) 271, 278 Medicines and Poisons No 1 (SUSMP 1) 212,
Sayers v Harlow Urban District Council 174 213t
Schedule 4 substances 212–213 standard of care
as prescription drugs 212–213 in Australian Capital Territory 54
regulations of 214–215 Civil Liability Act 2002 (NSW) and 58
Schedule 8 substances competent professional practice and
as controlled drugs 212–213 71–72
regulations of 215–216 determining 67–68
scheduled medicine endorsements 275–276, 276b for healthcare professionals 50, 63
Scott, Russell 301 in information cases 59–63
SEARO WHO see South East Asian Region of legislative provisions determining
the World Health Organisation 54–58
seclusion 361 in medical negligence 50
definition of 405–406 Mental Health Act 2007 (NSW) reviews of
in Mental Health Act 1986 (Vic) 405–406 351–352
in Mental Health Act 1996 (Tas) 391 negligence and 49–50
in Mental Health Act 1996 (WA) 412–413 negligence and approach to 67–68
in Mental Health Act 2000 (Qld) 372–374 negligence from conduct below 94
in Mental Health and Related Services Act 1998 in New South Wales 55
(NT) 361 in Northern Territory 58
in mental health facility 372–374 nurses’ concerns about 63, 151
Mental Health Review Tribunal guidelines for in Queensland 55
391 in South Australia 55–56
self-employed person 115 in Tasmania 56
senile dementia 376 in treatment cases 50–54, 58–59
Severity Assessment Code (SAC) 242–243 in Victoria 56–57
Sex Discrimination Act 1984 (Cth) 185 in Western Australia 57–58
Sha Cheng Wang 73–77 standard of care examples
Sha Cheng Wang v Central Sydney Area Health Bolan v Friern Hospital Management
Service 73–77 Committee 51
ShareLife 301–302 Chappel v Hart 59, 61
Singer, P. 27–28 Halverson v Dobler 58–59
sleep status reporting 229–230 Langley v Glandore Pty Ltd 64
Smith, Jennifer 74 Rogers v Whitaker 52, 54, 58–61, 63
society, law in 1–3 Rosenberg v Percival 61
South Australia (SA) standard of proof 8–10
Civil Liability Act 1936 of 55–56 state and territory courts 14
Equal Opportunity Act 1984 of 184–185 state care, of minors 167
437
INDEX
Statement of Rights Coroners Acts provisions in 289, 293–294

in Mental Health Act 342 coronial court structure in 289
in Mental Health Act 2000 (Qld) 374 courts of 14
Mental Health Review Tribunal with 342, Fair Work Act 2009 (Cth) applying in 188
350–351 incident reporting systems by 241t
mentally ill person 342 mental health legislation in 321–416
in New South Wales 350–351 tissue and blood donation in 306t–307t
in Queensland 374 Therapeutic Goods Act 1989 (Cth) 212, 275–276
in South Australia 376–377 therapeutic privilege 29, 152–153
statutes 224–226 time limits 111–112
statutory law 5 torts 137
statutory obligations 65–66 toxicity 212
statutory provisions 161, 166, 168–169 toxicology results 291
sterilisation 359 trade schools 204
Stewart, C. 26–27 Transplantation and Anatomy Act 1978
Storey v Ashton 125 (ACT) 167t, 303–304, 306t–307t, 308–310
student registration 260–261 Transplantation and Anatomy Act 1979
summary offences 19 (Qld) 167t, 306t–307t
Supreme Court 14 Transplantation and Anatomy Act 1983
appeal process and 363 (SA) 306t–307t, 309, 312
Cruzan v Director, Missouri Department of Transplantation and Anatomy Act 2011
Health 170–171 (NT) 306t–307t
Mental Health Act 2007 (NSW) appeal to 345, travel 203
347 treatment
Northern Territory appeals to 363 approved facility for 354
parens patriae jurisdiction of 158 in approved treatment centre 376–377
surgical instruments 84–86 blood transfusion 160–161, 166–167
surgical operation 349 children without parental consent for
SUSMP 1 212 168–169
sympathetic ophthalmia 53 consent and spouse 161
criteria 368
detention and treatment order and 377–379
T ECT maximum number of 349
Tabet, Reema 104 emergency psychiatric 412
Tabet v Gett 104–105 end-of-life 159, 169–171
Tasmania (Tas) healthcare professionals information
anaesthetic deaths in 291 responsibilities regarding 151–152
Anti-Discrimination Act 1998 of 185 involuntary treatment order and
Children, Young Persons and Their Families Act 368–369, 394–396
1997 in 167 life-sustaining 158
Civil Liability Act 2002 of 56, 62 of mental health 320–321
Human Tissue Act 1985 of 312 in Mental Health Act 1986 (Vic) 394–396,
limitation periods in 111 398–403
Mental Health Act 1996 in 383–392 in Mental Health Act 1996 (Tas) 390–391
public health or safety in 293–294 in Mental Health Act 1996 (WA) 414
pure mental harm compensation in 97 Mental Health Act 1996 (WA) prohibiting 414
standard of care in 56 Mental Health Act 2000 (Qld) prohibiting 372
Tasmanian dams case 7 Mental Health Act 2000 (Qld) types of
teleological theories 33 371–372
termination Mental Health Act 2007 (NSW) types of 345
employee 187, 190–191 Mental Health and Related Services Act 1998
of employment contract 187, 189–192 (NT) types of 358–359
workers compensation and 206 non-psychiatric 361–362, 402–403
territories/states nurses providing information concerning 149
Australian Law Reform Commission adopted patient consent and information required
by 304 for 146–148, 147b–148b
blood transfusions in 167t patient’s mental health plans for 369–370
child removal or detention in 168t patient’s right to refuse 170–171
438
Index
psychiatric order for 323–324 volenti non fir injuria 114

refusal of 172t–173t voluntary admission
Rogers v Whitaker information about 146 in approved hospital 384–388
special medical 349–350 in approved treatment centre 376
of spouse 161 discharge of 335–336
standard of care cases of 50–54, 58–59 emergency assessment for 367–368
see also community treatment order; medical in Mental Health (Treatment and Care) Act
treatment 1994 (ACT) 322
triage, in emergency department 75–77 mental health application and 322
tribunal consent 157–158, 165 in mental health facilities 334–336, 342–343,
Trustee and Guardian Act 2009 (NSW) 342, 344 354–355
voluntary assumption of risk 114
voluntary manslaughter 23
U voluntary patient 159–160
unfair dismissal 191–192 community treatment order admission of
union representatives 199 387
United Nations 154, 319–320 ECT procedure for 347–348
United States Constitution 2–3 mechanical restraint of 360
urgent healthcare 157 mental health facility and 355
V W
valid consent 142, 144–169 WA see Western Australia
value systems 36–38 wage rates 188
VCAT see Victorian Civil and Administrative Wernicke’s encephalopathy 158–159
Tribunal Western Australia (WA)
Ventouse extraction 89 anaesthetic deaths in 291
verbal consent 143 apology meaning in 110
VHIMS see Victorian Health Incident Children and Community Services Act 2004 in
Management System Project 167
Vic see Victoria Civil Liability Act 2002 of 57–58
vicarious liability Equal Opportunity Act 1984 of 185
Albrighton v Royal Prince Alfred forensic practice reviews in 313–314
Hospital 118–119 good Samaritan defined in 133
as common-law principles 114–128 limitation periods in 111
Ellis v Wallsend District Hospital 119–123 Mental Health Act 1996 in 409–416
employee designation under 115–123 public health or safety in 293–294
employments’ course and scope in 123–124 standard of care in 57–58
negligence and 114–128 written consent required in 143–144
Victoria (Vic) white cell count 77–79
apology meaning in 110 WHS see Work Health Safety
County Court Judge appointed in 289 work groups 197
Equal Opportunity Act 1995 of 185 Work Health and Safety Act 193
good Samaritan defined in 133 Australian Capital Territory with 193–198
limitation periods in 111–112 employers and 194–198
medical procedure death in 291 inspections in 198
Mental Health Act 1986 in 392 of New South Wales 193–194
Mental Health Act proposal in 392 non-compliance penalties of 199
public health or safety in 293–294 of Queensland 193–194
pure mental harm compensation in 97 reasonably practicable in 195
standard of care in 56–57 representation from 197–198
Wrongs Act 1958 for 56–57, 62 worker defined in 196
Victorian Civil and Administrative Tribunal Work Health and Safety Act 2011 (NSW) 194
(VCAT) 407–408 Work Health Safety (WHS) 199
Victorian Health Incident Management System work performance 189–190
Project (VHIMS) 241–242, 242b WorkChoices amendments 7–8, 186–187
Victorian Mental Health Review Board WorkChoices amendments case 7
396–398 worker 196
439
INDEX
workers compensation employment contracts and 192–193

assault at work and 204 in law 192
defences to claims of 204–205 legislation 198
disease definition and 202 representatives’ requirements of 197–198
employee 200–205 role of 198
employee termination and 206 union representatives entering workplaces with
lunch period injuries and 203 199
making claim for 205, 207 see also occupational health and safety
qualifying for 200–204 Workplace Relations Act 1996 (Cth) 7–8,
sporting activities and 204 186–187
trade school injuries and 204 Workplace Standards Inspector 197
travel to and from work and 203 work-related injuries 206–207
work-related injuries and 206–207 World Health Organization 352
workplace Wrongs Act 1958 (Vic) 45t, 48–49, 56–57,
aggression in 199–200 62–63, 96–98, 110, 133
agreement 186–189
inspector 198
workplace health and safety 196 Z
compliance provisions under 198 zygote intrafallopian transfer (ZIFT) 315
comprehensive elements of 199–200
440

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Hon Justice Patricia J Staunton AM RN, CM,

Sydney Edinburgh London New York Philadelphia St Louis Toronto

Elsevier Australia. ACN 001 002 357

National Library of Australia Cataloguing-in-Publication Data

Author: Staunton, Patricia J.

Publisher: Libby Houston

The determination of the standard Damage suffered by the plaintiff 95

What information is available to help Terms and conditions of the

Arising out of or in the course Patients’ right of access to their

The composition of the tribunal 343 Guardianship Board 380

To my parents with love and affection. Patricia Staunton

For Laurie. Mary Chiarella

Lyn Francis BN, MHM, LLB, LLM, G.Cert PTT

Amanda Stott, RN, BSocSc (Psych), MEd

A knowledge of the law as an adjunct to a primary area of activity such as nursing

Understanding what the law is

influenced, and continue to influence, the development of such rules. Primarily

Where does our law come from?

Development of the common law

Parliamentary or statute law

The application of English legal principles to Australia

WorkChoices amendments were affirmed by the High Court as constitutionally

How the law operates

Civil and criminal consequences from one action

Administrative machinery of the law

Figure 1.1 Hierarchical structure of courts in Australia

State and territory courts

DISTRICT OR COUNTY COURTS

STATE AND TERRITORY SUPREME COURTS

FAMILY COURT OF AUSTRALIA

FEDERAL COURT OF AUSTRALIA

HIGH COURT OF AUSTRALIA

Other court systems and tribunals

The appeal process

The doctrine of precedent

Who pays the bill?

Development of the criminal law

The elements of a crime

Criminal negligence and the significance of the element of intent

made, what is usually present is a degree of carelessness or error of judgment such

As an extreme example of such a situation, suppose that a patient, Mr Smith,

It is this systematic approach to addressing problems that is probably the most

community’.8 Both undergraduate and some specialist postgraduate programs now

Ethics: what it is not

An example of an ethical problem

HOW MIGHT THE NURSE RESPOND?

Valuing the diversity of people requires nurses to appreciate how different

What resources are available to assist nurses and midwives to address

Major ethical theories

Deontological or intrinsicalist theories

Teleological or consequentialist theories

Modern feminist ethics

d) stress the significance of values such as empathy, interdependence and

The four major ethical principles

Models for ethical decision-making in healthcare

Clearly state the problem

3 litres — remembering the 300 ml of normal saline administered in the operating