1. Describe the standard of care in Australian negligence law and discuss its role in limiting the behaviour of doctors.
If you choose this question, your essay must do the following:
Set out the basic requirements of the law of negligence in Australia and describe the role of the standard of care when assessing liability for negligent actions (approximately 30% of your words).
Describe what the Australian law understands to be the standard of care that is owed by doctors when treating patients. Your analysis must include and integrate discussion of the cases we have considered in the classes on negligence as it is applied to health care practitioners (approximately 30% of your words).
Explain how the potential for being liable for a compensation payout may impact on the behaviour of doctors. Expressed differently, this section of the essay allows you to consider how effectively negligence law fulfils the policy goal of enhancing patient welfare (approximately 30% of your words.
You will also need to include an introductory paragraph and a conclusion in your essay (approximately 10% of your words)
Describing the standard of care in Australian negligence law and discuss its role in limiting the behavior of doctors
Negligence law is the standard law process that was initiated through the Civil Liability Act 2002. The definition of negligence is needed to be understood before discussing the basic requirements of the negligence law. The defendant will only be liable for negligence in case the failure of taking responsible care can cause foreseeable damage. In this case, there are two parties- the defendant and the other party is who has to take responsibility for the damage. There are certain conditions and the classifications to maintain the duty. Duty care maintains the relationship between the two parties. There might be some physical damage as driving on the road, or there can be a relationship that does not require physical proximity such as the relationship between manufacturer and consumers. This relationship can be maintained with the health professionals and the patients. For example, a nurse has to take care of the patients through the proper monitoring process. In case, if the nurse provides wrong medicine the damage can happen to the patients. It can be assumed that the action may not be intentional. However, there is a lack of duty and negligence from the nurse's side. In this case, the defendant patient can complain to the nurse as well as the hospital. The hospital, in this case, can be accused as it is the responsibility of the hospital to provide proper training to the nurse. If the nurse is trained correctly, then there should not be a mistake at work. So, in this case, it can be said the basic requirements of the negligence law is to understand the case properly and find out if there is negligence in duty is present from any side and if it is justified or not.
Standard of care in Australian negligence law
Role of standard care accessing the liability is related to the two terms related to the determination of the law of negligence- the content of duty and breach of duty. Content of duty defines the duty to be maintained by the service given to the service taker in a proper way. However, the effectiveness of the content of duty is dependable on the circumstances and the involvement of the individuals. In the health care sector, not all the harms caused by the service giver can be compensable. On the other hand, the breach of duty is something done by the service given which should not be done by a reasonable person.
In order to maintain the liability for both the service taker and the service giver law should be maintained. Apart from that in the health care sector doctors should treat patients according to the medical law. In this context, an example can be given. According to the law, the doctors have to write the generic name of the medicine. In case if some doctors are prescribing the name of the particular medicine brand, the patient can raise the question against this act. Here the position of the defendant will indicate the duty defined by the circumstances of the case. The doctor must prescribe the generic name of the medicine. However, if he or she mentions the particular brand name of the medicine that does not justify his or her duty, the defendant can describe his or her position in this context.
In order to understand the standard care owned by the doctors while treating the patients in Australia few things are needed to be concerned. These are – assuming the liability of the doctors, standard care included in the health care service and the duties that are required in order to be followed by the health care professionals. The standard care is defined by the ordinary but careful and competent practices by the health care professionals. The set of practices refers to some standard of practice which is needed to be maintained by both the experienced and inexperienced professionals. According to the standard of the health care practice, an act or omission cannot be regarded as negligence act if the act is widely accepted by the professionals in practice.
However, a medical practice act can be regarded as negligence if the act is contradictory with the standard acts or the general acts that are practiced by most of the professionals in the health care industry.
In order to understand the facts more clearly, the example of Hall v Semple (1862) can be mentioned. In this case, the plaintiff was sent to mental asylum under the Lunacy Act of 1846. Plaintiff defend that his wife is running his business and have an association with the other man. According to the defendant, the plaintiff was acting upon the delusion. In this situation, two things are needed to be considered. It has to be seen if the defendant is assured about the claim of action upon the delusion. In this context, a proper medical examination is needed to be taken care off. It is the duty of the defendant. Otherwise, there could be a chance that a common man would get the wrong judgment.
Similarly, in the medical field, the health care professional is liable for any harm to the patient if any act of negligence occurs from the medical professional's side (O'Connor 2019). In order to judge if the medical professional is liable for any harm, certain things are needed to be considered. These are whether the plaintiff owned a duty of care, whether the harm has occurred to the plaintiff and the harm is foreseeable. In order to understand the actions and the consequences in a proper way, the example can be given. A woman has fallen ill after drinking the ginger beer. After the investigation, it has been seen that there was a decomposing snail in the bottle. It is not the liability for the consumers to see examine the bottle. It is the responsibility of the quality control board of the organisation selling the drinks. In that case, it can be said there was the negligence of duty from the organisation's side that has caused the physical harm of the consumers. Similarly, in the Hall versus Semple case, it is the liability of the defendant to examine the mental health of the plaintiff. In case, if the proper examination is not carried out, it can be said that there is an act of negligence that caused the plaintiff mental and physical harm through the declaring the guilty by error.
According to the law in the medical field, the plaintiff will be compensated if someone from the position of the defendant finds something foreseeable harm that occurred with the plaintiff. In this context, the mention of the Ellis versus Wallsend District Hospital can be mentioned. The patient was operated by the consultant doctor and had developed paraplegia. However, the doctor did not inform the patient about the risks. As for the consequence, the patient sued both the hospital and the surgeon. It has been seen that the surgeon was under the control of the hospital and the surgeon had paid the hospital for using the medical facilities. In this case, the negligence can be presented as regulations. The surgeon has a particular responsibility, and he should make the patient aware of the potential risks. However, he did not follow the duty in a proper way. The harm had occurred to the patient, and in that case, the patient can be compensated.
There are specific clauses and the regulations for the compensation to the party that has suffered the harmful effects of the incidents. It can be said that the compensation criteria will help the doctors to become more aware of taking care of the patients. Apart from that, the doctors will let the patient know about the potential risks associated with the treatment. There should be transparency in the medical treatment the patients are getting from the doctors. However, the criteria for the compensation is needed to be evaluated before making the judgement as there is a possibility that the doctors can become guilty by error. If this occurs, it can be assumed that this will have a negative impact on the behaviour of the doctors. In that case, they may not take the responsibility and will avoid taking responsibility. In that case, the patients may not get the chance to treat themselves properly. Apart from that, the doctors may not feel confident enough to carry on the treatment. In this case, they can refer the patients to the other doctors. This will become a confusing situation for the patients.
The enhancing of patient welfare can be achieved through the application of the negligence law. It has been seen that with the use of the negligence law the conflict between the plaintiff and the defendant can be judged. On the basis of the application of this law, the deserved party in the argument can get justice. It can be said that the application of this law will be helpful to enhance the quality of healthcare practices. The doctors and the health care professionals will become aware of the rules and the regulations. Apart from that, they will be aware of the consequences of not maintaining the rules in a proper way. This will bring transparency in the health care sector. Apart from that illegal and unethical business with the health care services will be decreased with the application of the law. It has been seen that most of the negligence cases are related directly or indirectly with the mentality of the hospital or health care professionals to gain more profit.
It is needed to be understood that with the health care service the goodwill of the patients is involved along with the physical health of the patients. In this case, the negligence is not acceptable. However, there are cases where health care professionals are not subjected to be sued. However, the patient has claimed themselves as plaintiff. In this case, the negligence law is equally effective as it will help the judge the conditions and the consequences that occurred during the course of actions. On the basis of the judgment, the actions can be taken.
The negligence law ensures that there is a fair practice in the health care sector. Apart from that, the health care professionals will be aware of the consequences of not maintain the proper law. This will encourage them to take the rational and right decisions regarding the treatment of the patients. On the other hand, the patient will get the right and the relevant information regarding the treatment and the progress of the treatment. Apart from that, they should be aware of the potential risks during the course of the treatment. For further improvement of the health care sector, this law can encourage health care professionals to adopt new technologies. However, this law does not permit to do the "experiments" on the patients. It can be said that the application of all the things mentioned above will help to enhance the quality of the health care service along with providing both the patients and the health care professionals to maintain the good professional practices. It is needed to be understood that with the health care service the goodwill of the patients is involved along with the physical health of the patients.