What are your legal rights?
It is important to know your legal rights. Legal rights are rights which have been formed either by legislation or by the common law. Legislation is passed by politicians in parliament. The common law is formed over a long period of time by judges in courts deciding what should happen in specific factual cases. These principles are then applied to similar factual cases that later arise, so over time the law becomes clear.
SOME IMPORTANT PATIENT RIGHTS
- Consent and the Right to Refuse Medical Treatment
One of the most important legal rights all patients have is the right to decide what happens to their own body. In legal terms this is called the law of consent and it includes the right to refuse medical treatment.
“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages.”
- Voluntary Consent
Consent must be given by the patient freely and voluntarily.
If you are a Patient Advocate ask yourself….
“Does the patient really mean what they say or are they merely saying it for a quiet life, to satisfy someone else or because the advice and persuasion to which they have been subjected is such that they can no longer think and decide for themselves.
- The Requirement for Information for Consent
For a consent to be free and voluntary the main two factors are (a) information and (b) time. Patients need to be given the right information and then have the time to consider and absorb that information, including the ability to seek further information and to ask questions if this is what they need to do.
- Consent Forms
Many health providers now ask patients to sign a consent form prior to medical treatment. The decision to provide consent to treatment (often shown by deciding whether or not to sign the consent form) is therefore one of the most critical decisions a patient will make and should not be made lightly or under pressure.
“The requirement for consent to be provided in advance of medical treatment is one of the most powerful protections for patients”
Informed Consent Information Sheet. Royal Australian College of General Practitioners.
Medical Consent Forms vary between states.
Create a medical consent allowing a caregiver to make medical decisions for a child.
Child Medical Consent Form
- Right to Refuse Medical Treatment
Patients have the right to refuse medical treatment at any time. The common law has held that “a valid refusal may be based upon religious, social or moral grounds, or indeed on no apparent rational grounds; and is entitled to respect…regardless.”
- Right to change your mind at any time
A patient may decide not to proceed with medical treatment that they have previously agreed to, and if they have refused medical treatment the patient can decide that they wish to receive that same treatment after all.
- Rights to give an Advanced Health Directive and appoint a Substitute Decision-Maker
An Advanced Health Directive is a document that outlines the medical care and treatment decisions a person wants made in the event that they lose capacity and cannot make their own medical treatment decisions at the necessary time. It is sometimes called a ‘living will’.
Patients need to maintain control of their medical treatment even if they are unable to make decisions for themselves by having an Advanced Health Directive or appointing a Substitute Decision-Maker.
Advanced Care Directive Forms vary between states.
Advanced Care Directive Forms
- Rights of Vulnerable Patients
Although patients may be vulnerable while in the health system, there are some population sectors that are considered to be especially vulnerable such as patients who lack capacity, including through age, disability and physical and mental and illness.
Patients who cannot provide consent to proposed medical treatment due to a temporary incapacity (for example, because they are unconscious or in a coma) are vulnerable simply because they cannot speak or decide for themselves at the time that a decision must be made.
A Medical Enduring Power of Attorney is a legal document that authorises another person to make decisions about your medical care and treatment on your behalf. The person making the medical enduring power of attorney is called the appointor, and the person who accepts the appointment is the agent.
Sometimes, people can get confused when considering whether to make an Advance Care Directive (ACD) or a Power of Attorney (POA). Each document serves a different purpose, however, both are equally important to have in place. First, we need to understand the nature and effect of each document and then explore the differences between them.
Advance Care Directive (ACD) and Power of Attorney (POA)
- Right to Complain about Health Care
Patients in Australia have the right to commence and conduct a formal complaint should they wish to do so. A specific legislative regime exists for receiving, managing and resolving complaints in the area of health care.
Anyone can make a complaint about a health practitioner’s health, conduct, or performance.
The complaint process varies between state. Health Complaints Commission operate in state jurisdictions to resolve complaints about healthcare and the handling of health information.
Health Complaints Commissions
Australian Health Practitioner Regulation Agency
The National Medical Practitioner Ombudsman accepts complaints about how the Australian Health Practitioner Regulation Agency (AHPRA) has handled matters including:
- Notifications about registered health practitioners
- Registration matters
- Personal information
- Freedom of information (FOI) requests.
National Health Practitioner Ombudsman
- Right to Pursue Medical Negligence
Patients have a right to pursue a medical malpractice which is a legal cause of action that occurs when a medical or health care professional, through a negligent act or omission, deviates from standards in their profession, thereby causing injury to a patient. The negligence might arise from errors in diagnosis, treatment, aftercare or health management. Source: Wikipedia
The injured patient must show that the physician acted negligently in rendering care, and that such negligence resulted in injury. To do so, four legal elements must be proven: (1) a professional duty owed to the patient; (2) breach of such duty; (3) injury caused by the breach; and (4) resulting damages.
Search for a Medical Malpractice lawyer in your area.
- Right to Privacy and Access to Health Records and Confidentiality
Although often confused for being the same thing, confidentiality and privacy are in fact very different. Confidentiality is an ethical duty or obligation placed on health providers, whereas privacy is a right of patients that is protected both by legislation and the common law.
- Patient Responsibilities
It is important that patients also understand that in addition to their legal rights and entitlements, patients also have responsibilities to the health system. These responsibilities are discussed in The Patient Advocate Handbook.
“The responsibility to seek and choose health belongs with the patient. It is not the responsibility of the health system to make someone healthy – only to provide health care and treatment and advice and information at the patient’s request”.
Conclusion
We hope that the information provide above has helped you to build a platform for your own advocacy. The more you understand the key terminology as well as the policy and legal framework that relates to health care, the more effective you will be as an advocate for yourself or someone you care about. Although this information is specific for Australia many of the broader concepts also apply in many other countries.
Extracts from:
“The Patient Advocate Handbook: How to find and use your voice in healthcare”
Authors: Liz and Claire Crocker
Balboa Press 2019
Available in hard copy or electronic versions from resellers
Purchase here