Essay Topic: You must answer the following question:
1. Discuss how the Australian negligence law furthers the policy goals of the Australian health system.
To answer this question effectively, your essay must do the following:
Set out the basic requirements of the law of negligence in Australia (approximately 25% of your words); Set out at least two policy goals of the health system that may be linked with liability in negligence law (approximately 25% of your words); Explain how the law that allows for the payment of compensation by negligent practitioners can be understood as furthering the highlighted policy goals (approximately 40% of your words); and You will also need to include an introductory paragraph and a conclusion in your essay (approximately 10% of your words). Your analysis may include and integrate discussion of the cases we have considered in the classes on negligence as it is applied to health care practitioners; however, you may, instead, rely on secondary material in your description of the law.
Please read the following paragraphs on the expectations for your essay:
• Structure your paper. Use informative headings and sub-headings to guide the reader through your paper.
• In order to write this paper you will need to do research. This may include legal material, but you can focus on policy literature. Any insight you gain from these materials and that you use in your paper must be properly footnoted. In law we usually follow the Australian Guide to Legal Citation. In this particular course of the Sir Walter Murdoch School, however, you are probably faced with many citation styles and certainly political scientists are known to sometimes take dare I say, a strict and peculiar approach. In our unit you can chose any style you want. What is important is that you actually do reference properly (omitting to do so constitutes plagiarism!) and that your referencing style allows the reader to identify your source without further research.
• You are expected to employ your critical and analytical skills in this essay. Avoid mere description or regurgitation unless absolutely necessary for the reader to understand your text and do not block-quote excessively. Both your observations and your use of other people's writing should reflect this critical/analytical dimension. In sum, your intellectual input should be clearly discernible in the paper.
• You are not marked for your political or social views or opinions, but rather for your ability to present coherent, rational and logical arguments, properly supported by authority.
• You are also marked on your ability to express yourself clearly, logically and succinctly. Poor expression, grammar, punctuation and spelling will detract from your overall mark.
• Please note that your research effort, visible in the citations in the footnotes and demonstrated by your engagement with the material you have found, analysed and implemented into your own writing (and properly referenced in the footnotes) will be the central pillar for the mark you will receive.
• Your research paper should not exceed 2000 (inc of footnotes). The word count is primaril E- .0 you.
Australian Negligence Law and Health Systems
With the ramified economic changes, Australian negligence law has strengthened the policy gaols of the Australian health system. This law empowers the victim to claim the rightful loss suffered due to the practitioners' negligence, and at the same time, protects the practitioners who are not responsible for any misconduct that takes place if they ensure a duty of care. This law is useful to protect the rights of the patients and also allows them to take required legal actions in case of negligence found in the hospital. This essay aims to discuss various aspects of the law and also shows how it empowers the health system and its relation with policy objectives to the liability of practitioners and compensation due to the sufferers.
Basic requirements of the law of negligence in Australia
It has been considered that the law of Negligence aims to following objectives such as structure the law of negligence, to limit the liability, make the public authorities' liability clear and as per the standard norms and most importantly, resolve the disputes that revolve around negligence. Negligence is accompanied with the process where a failure to provide much-needed care to the patients and avoid causing any form of harm, physical or mental. Plaintiff is the person who appeals to the court for the harm caused to him, while the defendant is the person who is accused of causing harm due to his negligence. Thus, he defends himself. The burden of proof lies on the plaintiff, which means that the plaintiff has to prove the harm caused due to the negligence of the defendant. However, in the case of law of negligence, there is following requirements where plaintiff is required to show following conditions to be proved.
In the case held of Slater v Baker (1767) 2 Wils KB 359, it is divulged that there is a duty of the defendant to take care of the circumstances that arose. Under this, the plaintiff will prove that it was the defendant's duty to take care while treating him. Duty of care is an obligation of a person to ensure reasonable care while conducting an activity. Regarding this law, it is the medical practitioner responsible for ensuring his part of the duty.
Two policy goals of the health system that may be linked with liability in negligence law
The National Primary Health Strategic Objectives define the nation's goals with regard to the health of its citizens. The policies under the framework significantly influence the government's activities, and the service provided after that. While there are four objectives under the framework that guide the healthcare sector's functioning, there are two objectives related to the liability in Negligence Law.
The country is sincerely focused on ensuring individual and community wellbeing while keeping national, states and local levels' opportunities and challenges into consideration. Under Strategic Objective 3, one clear aspect is that a person's literacy level and interaction with the health system shall be ensured. This is quite an essential aspect as communicating with the patient forms the core of the healthcare services. If the patient is unaware of the treatment he is getting or the implications in future life due to the same, it can create enormous troubles for him. For instance, patient 'A' has to undergo surgery of which side effects and precautions to be taken after that are not communicated diligently, even in writing. Thus, he starts taking up activities that were not supposed to be done after the surgery, severely affecting his health. Here, he can claim liability over the physical damage caused to him. Here, the practitioner has breached his duty to warn of risks under reasonable care.
It has been considered that if Strategic Objective 4 is selected, it relates to the liability under negligence law. It defines specific potential actions for the practitioners, authorities, states and even the federal government. Thus, it is a comprehensive goal that specifically delegates the responsibilities. In the case of Blyth v Birmingham Waterworks Co (1856), it is held that there was no breach of duty, because the defendant did all that was reasonably necessary and in case when the defendants did all the required actions so he will not be liable for any wrong acts.
It must be noted that enhancing the services and their outcomes form the core of this goal or objective. In accordance with the negligence law, the plaintiff can appeal to the court based on disservice or inappropriate care provided to them. Moreover, if the practitioner does not correctly analyse the patient's health data, his ignorance can lead to substantial long-term consequences. For instance, patient 'B' suffering from diabetic type 2, is obese and, had to undergo a knee replacement operation. The practitioner failed to study the diabetic type 2 condition (level) of the patient. The practitioner went ahead with the operation, and complication arose due to the obesity of the patient. Thus, the patient will take a longer time to heal, and his employment opportunities are at stake. 'B' is the sole earner of the family, and thus, he also suffered mental harm. In such cases, strategic objective four can be linked to the liability under the law.
Payment of compensation by negligent practitioners as furthering the highlighted policy goals
It must be noted that once the court decides on the matter, if it finds that claim of the plaintiff is valid, it awards the payment of compensation to him, to be paid by the defendant. The claim and nature of compensation vary from case to case. While the payment of compensation is awarded to provide relief to the plaintiff, it also ensures the policy goals, as discussed above. However, before that, it is essential to have a clear idea of compensation payment to understand its role in furthering the National Primary Health Framework Strategic Objectives discussed above. The compensation claim is awarded to the plaintiff only if there is a sign of negligence or malpractice from the defendant's end. With regard to healthcare, if the practitioner has taken due 'care' which is reasonable, and the injuries or mental harm caused could not be foreseen, then the plaintiff's claim would not be admitted.
While the payment of compensation by negligent practitioner acts as a deterrence on unethical and negligent care given to the patients, it allows the optimum realisation of strategic objectives 3 and 4 of the National Primary Health Framework.
Strategic Objective 3
Take action to tackle the social determinants of health and wellbeing with an emphasis on health promotion, prevention, screening and early intervention
The objectives emphasise three different aspects-
Under the objective, the patient can claim compensation if his health deteriorated. He was not informed of his health status and the necessary precautions to be taken after the treatment. This implies that the practitioner has breached his duty to warn the risks to the patient. For instance, 'C' got his knee bones broken, and after his surgery, the practitioner did not warn him to rest for at least 45 days and show up to him for further treatment. 'C' started walking after 25 days of rest, and his knee got poorly injured again. Thus, he can rightfully claim compensation for the loss he suffered.
The second instance can help us understand it better. An Aboriginal and Torres Islander person seeks treatment from a hospital. He is charged exorbitantly due to his lack of knowledge regarding treatment costs and all he can claim for the economic loss caused to him. Here the social determinants were not taken into due consideration by the institution at large.
Strategic Objective 4
Improve quality, safety, performance and accountability
The aspects of this goal are:
According to this objective, the practitioners are liable to ensure their services are appropriate and ensure patient safety; also, ensure continuous efforts to strengthen the system of service by using the best ways possible and following the safety and quality standards. We can learn the essence of this objective regarding compensation of payment in case of negligence from the practitioner's end with the help of a few instances. First instance, patient 'D' went to the hospital for a routine operation, appendectomy. After getting into senses, he sensed extreme pain in his colon. The X-Ray showed that a small metal (gold earning) sized few mm is placed there due to the practitioners' negligence. Here, the compensation can be claimed by the plaintiff as negligence took place, and injuries could have been reasonably foreseen.
The second instance, the doctor-patient relationship, is considered a fiduciary relationship, whereby the practitioner should maintain confidentiality and respect the patient. Patient 'E' is homosexual and discussed his personal problems with the practitioner. However, due to the practitioner's negligence, one of the staff workers disclosed the information (report) to other staff members. Soon, the rumours of his health condition were spread everywhere in the hospital. 'E' suffered mental harm due to which he underwent depression for a specific period and gave up his job. He cannot find a suitable job now and claims the economic loss suffered due to the practitioner's negligence.
As discussed in the beginning of the assignment, an efficient and robust healthcare system empowers health care system. This essay assists in evaluating the law and how it can be brought into practice with the healthcare system. The law strikes a balance between the plaintiff and the defendant and gives both sides opportunities to put the views. The relation of the law with the health policy objectives indicates that if the practitioners abide by the core objectives, negligence cases can be minimised to a greater level.