2
/ 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 / 1Teachers / 1
Lecture Program / 1
Texts and Materials / 2
Topics and Course Outline / 3-11
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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.
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.
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TIME / MAJOR TOPICSSaturday 23 April
10.00am-11.00am / Introduction to bioethics
11.00am-12noon / Introduction to the Australian health system
12noon-1.00pm / The status of the foetus and the laws of abortion
2.00pm-3.00pm / Reproduction, procreative torts, and postmortem conception
4.00pm-5.00pm / Consent, capacity and substitute decision-making
Sunday 24 April
10.00am-11.30am / Medical negligence, the ‘Litigation Crisis’ and the Ipp reforms
11.30am-1.00pm / 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’)
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.
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 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, July4, 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
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?