DIPLOMA IN LAW LEGAL PROFESSION ADMISSION BOARD LAW EXTENSION COMMITTEE LAW EXTENSION COMMITTEE SUBJECT GUIDE INTRODUCTION TO HEALTH LAW AND BIOETHICS SUBJECT GUIDE BETWEEN SESSION COURSE APRIL 2016 Course Description and Objectives Teachers Lecture Program Texts and Materials Topics and Course Outline 1 1 1 2 3-11 1 LAW EXTENSION COMMITTEE APRIL 2016 INTRODUCTION TO HEALTH AND BIOETHICS COURSE DESCRIPTION AND OBJECTIVES This subject introduces students to interrelationships between health care, ethics, and the law. In particular students will explore the moral bases of law and the means by which law influences healthcare norms, clinical practice, and health policy. Students are shown how to engage in bioethical approaches and relate those approaches to the interactions between law and healthcare. Students will then examine a number of areas of law that have particular significance for bioethics including the consent, tort law, competence, substitute decision-making, advance care planning, maternal-foetal conflicts, abortion, reproduction, end-of-life-decision-making, tissue regulation and infectious disease control. TEACHERS Prof Cameron Stewart, BEc, LLB(Hons), GradDipJur, GradDipLegal PracPhD Cameron is Pro Dean and a professor at Sydney Law School. He co-authored Equity and Trusts with Prof Peter Radan and Dr Andrew Lynch in two editions, and has also co-authored Principles of Australian Equity and Trusts with Prof Radan in two editions and Principles of Australian Equity and Trusts: Cases and Materials with Prof Radan and Ilya Vicovich. He also authored the Australian Medico-legal Handbook (with Ian Kerridge and Mal Parker) and Ethics and Law for the health professions (3rd ed 2009 and 4th ed 2013). He was Vice President of the Australasian Association of Bioethics and Health Law 2009-13. Cameron was also the Associate Editor in law of the Journal of Bioethical Inquiry and is the co-editor of the Ethics and health law news service. He also runs a website on Discovering Australian Guardianship Law. Cameron has worked on a number of projects for the NSW Ministry of Health, the NSW Guardianship Tribunal, the Office of Public Guardian and Alzheimer’s Australia. His current projects include studies on umbilical cord blood banking, tissue biorepositories, dementia care, guardianship law and consent to high risk medical procedures. LECTURE PROGRAM Lectures will be held on April 23-24, 2016, in New Law School Lecture Theatre 026, Main Campus, from 10am to 5pm. Regular short breaks will be taken and lunch will be from 1-2pm. For details as to the location of this venue, refer to the back page of the Course Information Handbook for a map of the University of Sydney main campus. Please note that this program is a general guide and may be varied according to need. 2 TIME MAJOR TOPICS Saturday 23 April 10.00am-11.00am 11.00am-12noon 12noon-1.00pm 2.00pm-3.00pm 4.00pm-5.00pm Introduction to bioethics Introduction to the Australian health system The status of the foetus and the laws of abortion Reproduction, procreative torts, and postmortem conception Consent, capacity and substitute decision-making Sunday 24 April 10.00am-11.30am 11.30am-1.00pm Medical negligence, the ‘Litigation Crisis’ and the Ipp reforms End-of-life decisions 2.00pm-3.30pm Public health and infectious disease control 3.30pm-5.00pm Human tissue, transplantation and genetics TEXTS AND MATERIALS Course Materials Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus) Recommended Text Students do not need to buy a text for the course but I will be referring to the following: Kerridge, Lowe and Stewart, Ethics and law for the health professions (4th ed., 2013, Federation Press) (‘KLS’) 3 TOPICS AND COURSE OUTLINE Introduction to medical ethics Readings KLS Chapters 1, 2 and 5 1. Kerridge, Lowe and Stewart feel that ethics is not law and a number of other things? If that is correct, what is it? What is the type of relationship between ethics and law envisaged by Stewart? Do you agree with it? Why? 2. What is virtue theory? Does it have any application to legal practice? How? 3. Isn’t everyone a utilitarian when it comes down to critical decision-making? Can you think of any situations where you wouldn’t choose to increase the overall happiness of society or a group of individuals, even if it meant that some people (or animals) may suffer? What is the great flaw in the hedonistic calculus? 4. What are the four principles espoused by Beauchamp and Childress? Which, if any, of the four principles appears to have dominance over the others? 5. What is the relationship between the law and ethics described by Stewart? 6. Tony is a man in his twenties. He has a loving family (his mum and two sisters) and lived with his girlfriend, Sue, until three years ago when he had a serious car accident on the F3. No one is exactly sure what happened but he was found near the wreck of his car in an unconscious state, suffering a severe head injury. He experiences periods of wakefulness but is only responsive to loud noises and touching on his arms and legs. To these stimuli he reaches by twitching and blinking. He has no ability to speak and must be feed through a feeding tube which has been inserted in his stomach. There is now little hope for any improvement in his condition. For the last two years he has been placed in a nursing home. The fees are expensive and, despite this, Tony's mum feels that he is not getting appropriate amounts of care. She feels that the staff have 'written him off'. She wants to take care of him at home but feels that this might be too daunting. You are a doctor at the local area hospital working in the intensive care unit. One day Tony's mum brings him to the emergency department. He is suffering from a serious lung infection and it appears that his feeding tube is not working properly. He is emaciated and feverish. The other doctors do not want him to be admitted to intensive care as there are few beds and they don't believe that the bed should be given to Tony. What should you do? (a) Think firstly about what your choices are for treating Tony. What are they? (b) What are the competing principles at work in our example? Think back to the values of the four principles. List the factors at work in the assessment of values. (c) Are you being deontological in your approach or are you being utilitarian? How would these philosophies work at solving your dilemma? 7. You are a doctor in a local area emergency department. Megan is a local vagrant who often comes to the local hospital for treatment. She is suffering from a number of conditions relating to her alcoholism and is often delirious. Normally you treat her with some food and tend to her wounds. If there is a spare bed you let her sleep of her drunkenness and let her go back to the street. 4 Yesterday she appeared at the hospital in a distressed state. She was aphasic (unable to speak) and she appeared to have become incontinent and unable to move her left side. She was incredibly dehydrated. It is clear that she has suffered a serious stroke. You give her an IV infusion and begin to attempt testing to work out the extent of the stroke. She keeps pulling out the IV and appears to object to the testing. When you leave her alone she seems to be more comfortable. Should you restrain her to do the testing? Applying the approach of principalism what are the issues and how do you think Megan's dilemma should be resolved? Legal dimensions of the Australian health care system Readings KLS Chp 9 Questions 1. What is the relationship between the Federal and State health departments? What does the Federal government do in relation to health care? What about the state governments? Which of the following is governed by State or Federal governments (or both): (a) Discipline of doctors; (b) Control of public hospitals; (c) Stem cell research; (d) Artificial reproductive technology; and (e) Funding for visits to GPs? The status of the foetus and the laws of abortion Readings KLS Chp 21 CES v Superclinics (Australia) Pty Ltd [1995] NSWSC103 (CA), 38 NSWLR 47 R v Iby [2005] NSWCCA 178, 63 NSWLR 278 R v Sood (Ruling No 3) [2006] NSWSC 762 Hughes v R [2008] NSWCCA 48 Whelan v R [2012] NSWCCA 147 Barrett v Coroner's Court of South Australia [2010] SASCFC 70 Lee & Hutton [2013] FamCA 745 M Rankin, ‘The Offence of Child Destruction: Issues for Medical Abortion’ [2013] SydLawRw 1; (2013) 35(1) Sydney Law Review 1 Questions 1. Make a list of the rights of the foetus compared to its disabilities. Does the foetus have a legal personality? Can harm be done to a foetus which the law recognises? If there are recognisable harms to foetuses which give rise to legal liability when the child is born, what can be done to stop these harms from occurring (if anything)? 2. Review the background to Islamic, Jewish and Catholic approaches to abortion. What are the differences and what are the similarities? How much do you think they have influenced each other, or been influenced by the similar factors? Which one is closest to the common law of abortion in its approach? 3. What were the facts of King? In what circumstances can a person be found to have committed homicide when they attack a foetus? 4. What are the facts of St Georges Healthcare NHS Trust v S; R v Collins; ex parte S [1998]? 5. All ER 673? If one was to place this case in the context of ethical theories, which ones are the most likely to support the conclusions of this case? Which ethical theories could be used to attack the case? What is the boundary between the mother's right to control her body and 5 the right of the foetus to be born? Does the foetus have rights? What role can the state play (if any)? 6. Create a checklist for the elements of the crimes of abortion and child destruction. What are the key factors and what defences are available? How do the defences match with the ethical arguments for or against abortion? How have the Victorian reforms change the law of abortion? How have they affected access to medical abortion? 7. Read the following radio report from radio National's AM program: This is a transcript of AM broadcast at 0800 AEST on local radio. Doctors surveyed on attitudes towards abortion AM - Tuesday, July 4, 2000, 8:15 COMPERE: A survey of attitudes of Victorian doctors towards abortion has found that the majority of those surveyed support the termination of a pregnancy where a foetus has dwarfism. The survey comes only a day after the revelation that a late-term abortion was performed at Melbourne's Royal Women's Hospital after it was discovered the foetus was likely to be a dwarf. The hospital has suspended three staff in the procedure, set up an internal inquiry, and referred the matter to the Coroner's Court. Associate Professor Julian Savulescu, an ethicist at the Murdoch Children's Research Institute which has published the survey spoke to Damien Carrick. PROFESSOR JULIAN SAVULESCU: We surveyed Victorian obstetricians and asked them whether, if it was possible to diagnose dwarfism at 13 weeks, what their attitude to termination would be, and 100 per cent of obstetricians supported termination of pregnancy at 13 weeks. But that dropped to 14 per cent at 24 weeks. However, we also surveyed clinical geneticists and specialist obstetricians engaged in ultrasound and, of those practitioners, 70 per cent still supported termination of pregnancy for dwarfism at 24 weeks. DAMIEN CARRICK: Why do you think there was a discrepancy between those two groups of professionals? PROFESSOR SAVULESCU: I think obstetricians are very much engaged in delivering babies and many of them have a very strong commitment only to delivering babies and have quite serious moral objections to termination of pregnancy. I guess that geneticists and those engaged in ultrasound have a much more unified set of moral beliefs on that issue. DAMIEN CARRICK: We’ve heard in the news about a woman who had a termination for a foetus which had dwarfism at 32 weeks. In your view would that be acceptable to the bulk of people that you’ve surveyed? PROFESSOR SAVULESCU: I think it's important to put this into an international context. The Royal College of Obstetric and Gynaecology in England produced a very good report on late termination of pregnancy in 1998 and recognised that it was a part of accepted medical practice and that over a 100 such terminations occurred there per year. And indeed described a case very similar to the one at the Children's Hospital where the pregnancy was terminated at 28 weeks for 6 dwarfism. And the basis for that was that the mother herself was a dwarf and they said that her own experience and suffering of having been a dwarf and her repeated requests were the reasons why that termination was done. Now the College of Obstetrics and Gynaecology endorsed that decision in the United Kingdom. DAMIEN CARRICK: And in that case were the doctors involved suspended or was the matter referred to the Coroner's Court? PROFESSOR SAVULESCU: No, that was an example of what was thought to be an acceptable termination of pregnancy in the United Kingdom. Indeed the college also reported terminations even past 32 weeks, at 34 weeks, for Down’s syndrome and spina bifida in the United Kingdom. DAMIEN CARRICK: Julian Savulescu says Australian hospitals need to set up UK and US style clinical ethics committees which can respond immediately to situations like the one at the Royal Women's Hospital. PROFESSOR SAVULESCU: I think in the past doctors were able to discuss these cases purely within the profession but I think there's now a growing need to involve more people and a broader range of people in these discussions and make the decisions transparent to the public. COMPERE: Julian Savulescu. Do you believe that Professor Savulsecu's support for late term abortions is warranted? What are the ethical principles at play in such decisions? Given the findings in R v Sood and the change in Victorian laws, do you think such an abortion would be legal? Reproduction, procreative torts and postmortem conception Readings KLS Chps 19, 20 Cattanach v Melchior [2003] HCA 38 Harriton v Stephens [2006] HCA 15 Waller v James; Waller v Hoolahan [2006] HCA 16 Waller v James [2013] NSWSC 497 Neville v Lam (No 3) [2014] NSWSC 607 Questions 1. What are the ethical and legal issues involved in sex selection? If you were an IVF technician and a couple wanted IVF to determine the sex of their baby would you use your skills to help them do it? On what grounds might sex selection be ethically valid? Do you agree with Savulescu's argument in favour of sex selection? 2. Sheldon and Wilkinson’s article concerns the use of preimplantation genetic diagnosis to choose embryos that have attributes useful for the treatment of existing children. What are the dangers of 'engineering' children to be used for treatment? Is this ethically different from the use of living siblings to provide bone marrow and other tissue for the treatment of sick children? 3. Sheldon examines the problems with claims for wrongful appropriation of sperm. The most famous example of this concerned Boris Becker (who later admitted paternity). Having read Sheldon, imagine you are a lawyer for a famous rock star (Nord Pubis) who believes that his sperm has been taken during a consensual sexual act but used for a purpose for which he has not given approval ie the woman wants to sell the sperm on the internet. What claims might you bring on behalf of the rock star to prevent the sperm being sold? 7 4. The previous readings concern procreative freedoms and the abilities we now have to make choices regarding the use of our gametic material. The next two readings concern claims for negligence in that decision-making process. What are the differences between claims for wrongful conception, wrongful birth and wrongful life? What happened in the case of Melchior and how is approach adopted in this decision different from the British approach? Is the birth of a healthy child a compensable harm? What happened in Waller and why is this harm not compensable? 5. Why is it difficult to conceptualize the interests of a person in the gametic material of a deceased person? Is such material property? Something else maybe? What was the result of the decision in AB? Do you agree with it? What are the ethical pros and cons of allowing legal access to gametic material when the person has died? To make this area seem a little more 'real' consider Diane Blood, her husband Stephen and their child Liam. She has now conceived 2 sons, several years after his death. 6. This question occurs in NSW. Bronwyn and John had a son Chris, who was diagnosed with Radan’s disease, a fatal condition which can be cured by use of tissue compatible stem cells. They could not find a suitable match for Chris, so after getting medical advice they decided to have another child using IVF which would be available as a donor of stem cells. The IVF clinic would use pre-implantation genetic diagnosis (PGD) to select a child who would be tissue compatible but who would not suffer from Radan’s disease. The procedure was successful but during the birth process the new born child suffered an intracranial bleed (a stroke). This appeared to be caused by a genetic clotting disorder that had been passed on by John. Ordinarily this condition is screened for in PGD but for some reason the IVF clinic neglected to do the screening on this occasion. As a result of the bleed, the child, Matthew, suffered severe brain damage. The stem cells from Matthew’s cord blood were used to cure Chris. Bronwyn and John were very upset about Matthew’s brain damage. They wished they had been told about the screening for the clotting condition because they would have asked for it to be done. Answer the following: (a) Is it ethically permissible to select a child using PGD to save another child’s life? Are there legal controls on saviour siblings in NSW? (b) Do Bronwyn and John have the right to sue the IVF clinic for wrongful birth? (c) Can Matthew sue the IVF clinic for wrongful life? What perceived advantages might there be in such a claim as compared to wrongful birth? Consent, capacity and substitute decision-making Readings KLS 15 and 22 Questions 1. Is the test for competence a legal test or a medical one? According to Re C, when is a person competent to make a medical decision? If you were the treating doctor in that case would you have accepted the patient's decision or would you have amputated his foot? What protections are afforded to doctors who make a mistake about assessment of competence? 2. What are the different mechanisms for treating incompetent adults? What are the alternatives for gaining consent in situations where the patient is an incompetent adult? What rights do close relatives have at common law and under statute to consent to treatment? Is the power to consent to treatment different from the power to require treatment? In what circumstances can a doctor refuse to provide treatment that is requested by a proxy decisionmaker? 8 3. What were the facts of Marion's case? What are the limits to parental power over children? Think about all the non-therapeutic invasions that parents consent to for their children. Why is sterilisation treated differently to, say, ritual circumcision of male children, or ear piercing? 4. When can a child consent to treatment? When can a court consent to treatment over the child's objections? Can a parent override the objections of a child to treatment? 5. You are a local GP. During school hours a 12 year old girl, Molly, comes to see you and asks for a prescription to the contraceptive pill. She says that she has a boyfriend and that she doesn't want to get pregnant. She appears to understand the nature and effects of the treatment. You speak to her about the risks of early sexual activity including sexually transmitted disease. She accepts your advice and says that she will be responsible. Should you prescribe the pill? Does Molly's parent have a (moral/legal/ethical) right to know? 6. The case of Jodie and Mary raises some real concerns about doctors' assessment of best interests, parental rights and moral reasoning by courts. What is the nature of the conflict in this case? Are there times when doctors should leave treatment decision to parents alone? When should the court order treatment to occur? Medical negligence, the ‘Litigation Crisis’ and the Ipp reforms Readings KLS Chp 10 Questions 1. Revise the laws of negligence and the test under each step. What is the test for duty of care and how has it changed over the years? Has the test for doctors expanded? When will a doctor owe a duty of care to someone? Do they have to be a patient? When does a person become a patient? What is the point of negligence as a tort? 2. Explain the facts of Rogers v Whitaker. What does informed consent mean? What are the tests of materiality and how is it different from the Bolam test? List the factors in favour of the adoption of the Bolam test. Are there strong arguments for making medicine different from other professions? 3. What are the historical reasons for the indemnity crisis? Has the crisis been caused by the legal profession? Look at the evidence for causes of the crisis. 4. Review the changes to negligence as set out in the Civil Liability Act. Do you think these changes are substantial? Do you think that will solve the crisis? Who will ultimately pay for these changes? Is it fair for these people to pay? Are there other alternatives to tort law reform and, if there are, why are they not discussed? 5. You are a patient seeking cosmetic surgery. The surgery is to remove a scar on your face. What sort of risks will you be concerned about? What sort of questions will you ask your doctor? What sort of information do you think you should be provided with? If you later develop a facial palsy caused by a problem in the surgery caused by the doctor’s own negligence do you think you would sue? What factors would lead you to seek compensation? What if the injury was caused by a non-negligent injury which was inherently in the surgery and extremely improbable? Would you sue if you had not been informed of such a risk? 9 Refusal of treatment and advance care planning Readings KLS Chp 15 Brightwater Care Group Inc v Rossiter [2009] WASC 229 Hunter and New England Area Health Service v A [2009] NSWSC 761 H Ltd v J [2010] SASC 176 X v The Sydney Children's Hospitals Network [2013] NSWCA 320 Questions 1. To what extent does the patient's right to make a decision to refuse treatment conflict with the professional duties of doctors? Should patients be treated as submitting themselves to the control of doctors once they accept help? To the extent that patients are said to be able to make unreasonable refusals of treatment, when can doctors consider those reasons in the context of competence? 2. What were the facts of Qumsieh's case? Do you believe that the Guardianship Board decision was correct? What about the decision of the NSWGT in AB’s case? Would you have decided differently? According to Stewart, what does the common law say about the validity of advance directives in Australia? 3. Consider the following scenario: a patient presents at an emergency clinic. The patient has early stage HIV and has filled out a directive refusing CPR. The AD does not state the circumstances in which CPR is meant to be refused. After being given an antibiotic the patient goes into anaphylactic shock. Should you perform CPR? 4. What is the difference between suicide and refusing life sustaining treatment (this is not as easy as it sounds)? 5. Elizabeth has been on a ventilator for 10 years after severe injuries she sustained in a car accident. She has lived a full life since that time but she is sick of being dependent on others and she wants you to disconnect the ventilator so she can die. She is competent. She also wants you to give her some barbiturates beforehand to help her deal with the choking she will experience. She wants to pass away peacefully. What are the ethical and legal issues with supporting her right to refuse treatment? What if you are not a doctor? Does that change the nature of your actions? Withdrawing of treatment, double effect and euthanasia Readings KLS Chps 17, 18, 25 Re Baby D (No 2) [2011] FamCA 176 Justins v R [2010] NSWCCA 242 Re Natalie [2012] NSWSC 1109 Questions 1. What is the concept of futility and what problems does it face? 2. What is quality of life and how should it be measured in end-of-life decisions? 3. What is CPR and how effective is it as a treatment? After reading KLM would you want to be given CPR? How might you document a decision to refuse CPR? 4. What were the facts of the Northridge decision and how does it illustrate the problems with the current law of no–CPR orders? 5. What is post-coma unresponsiveness (PCU)? Is it possible to recover from PCU? 10 6. Is the artificial provision of water and food medical treatment? Should a distinction be drawn between treatment and basic care? Do you think it would be ethical to stop cleaning and turning a patient in a PVS? What is the basis of distinguishing basic care and tube feeding? Would it be acceptable to stop feeding a patient who was able to swallow and eat? 7. How relevant is quality of life in decisions to withdraw feeding from patients? Should a patient's quality of life be relevant? What quality of life was enjoyed by Nancy Cruzan, Anthony Bland, Terri Schiavo or BWV? In some cases, the patient is incompetent but sensate. Is it permissible to use quality of life considerations in such a case? If quality of life is relevant what factors should be considered in its assessment? 8. Do doctors intend to kill patients when they withdraw life-sustaining treatment from them? Think back to your knowledge of criminal law. 9. Do doctors cause the death of their patients when they withdraw life-sustaining treatments? Compare the following examples: Example A: Doctor Bob is treating Tony who has been in a PVS for 7 years. Tony's condition has worsened and he is suffering from a number of infections that have gotten progressively worse. His body is breaking down. The doctor, in consultation with Tony's mum, has taken him off the antibiotics and has upped his pain killing medication (with opioids). This is suppressing his respiration and he will die soon. The doctor is no longer providing artificial feeding. Tony dies after a week. Example B: Tony's condition is the same as in A, however Tony's mum has kept him at home. Without consultation she pulls out his feeding tube. He dies after a week. Example C: Tony's sister pulls out a gun and shoots him dead. She loves him but can't stand to see him in pain. Look at the ethical and legal differences between each example. 10. The article on the extubation of newborns from the BMJ examines the difficulties with drawing distinctions between homicide and the acceleration of death. Does the administration of paralyzing agents before extubation fit within the Bland doctrine? If it does not how can it be justified? 11. What are the arguments for and against a legislative scheme for voluntary euthanasia? Do we currently have recognition of involuntary euthanasia? Why is it that Australian jurisdictions no longer have any scheme? Public health and infectious disease control Readings KLS Chps 31, 32 BM v AR [2007] VCC 223 Questions 1. What is public health and how is its regulation different from other health disciplines? 2. What are some of the ethical problems raised by HIV/AIDS and the law’s response to it? 3. What duties of confidentiality are owed by health professionals to those who have contracted infectious disease? Should patients all be screened to protect health workers? Should infected health workers resign from their jobs? 4. What sorts of powers are given to health authorities to control public health? 11 5. What were the facts of Reisner? Why is it unnecessary for the doctor to know the identity of the third party for a duty to be imposed? How many sexual partners did the doctor owe a duty to? What if Jennifer had had three sexual partners? What about partners infected by Daniel? How might an Australian court justify the imposition of a duty of care like that found in Reisner? 6. In Harvey v PD why was it that the actions of FH did not constitute a break in the chain of causation? Is it fair to blame the doctors for the illegal conduct of the infected man? Or is that just part of the duty to PD? Human tissue, transplantation and genetics Readings KLS Chp 40 Questions 1. How would you describe the current system of organ donation employed in Australia? Is it an opt-in or opt-out system? What is the difference between beating and non-heart beating donors? If a person's heart is beating are they dead? Should people be able to choose the definition of death that suits them? 2. Should there be a market for organs? What are the arguments for and against such a market? 3. How is consent gained for organ donation from the dead? Is consent relevant at all? If noone owns the corpse why should it matter what happens? 4. What were some of the allegations of corruption going on at the Glebe Morgue? Would a property right in human tissue resolve some of these issues? 5. McCaughan and Lynch discuss living donation of liver. How are donors selected? What are the side effects of donation? Do you think that this procedure should be accepted in Australia?