Question

3) Various pieces of legislation are enacted in each State/Territory underpinning nursing practice. Identify the legislation relevant to your State/Territory relating to the following and describe how these pieces of legislation impact your nursing practice (in 40-50 words each):

Question 1 Health Practitioner Regulation National Law Act

Question 2 Health (drugs and poisons) legislation

Question 3 Mental health legislation

Question 4 Carers recognition legislation or official policies

question 5 Anti-discrimination legislation

Children and young people legislation

Working with children legislation

Workplace health and safety (WHS) legislation

Answer 1

1) Health Practitioner Regulation National Law Act

  

Health Practitioner Regulation National Law Amendment

engage health practitioners and will likely amend the NATIONAL – Health Practitioner Regulation module.

Please note that the Act automatically amends the Health Practitioner Regulation National Law as enacted in the Australian Capital Territory, New South Wales (except for Divisions 3-12 of Part 8 of the National Law), the Northern Territory, Victoria and Tasmania.

If South Australia adopts these changes, this will occur through amending regulations.

For these changes to be adopted in Western Australia, an amending Western Australian Act is required. The Western Australia National Law currently exempts “treating practitioners” from the mandatory reporting requirement (discussed below) and it is expressed in the explanatory statement to this Act that the exemption will remain.

Health Practitioner Regulation National Law and Other Legislation Amendment Act 2019 (Qld)

Please be advised that the Health Practitioner Regulation National Law and Other Legislation Amendment Act 2019 (Qld) (the Act) passed its Third Reading on 26 February 2019 and received the Royal Assent on 7 March 2019. The Act is due to commence on 8 March 2020, unless proclaimed earlier.

The Act will amend the Health Practitioner Regulation National Law Act 2009 (Qld) (the National Law). Below is a summary of some of the important changes it would institute.

New provisions to govern mandatory reporting by “treating practitioners”

The primary purpose of the Act is to address concerns that the National Law, in its current state, discourages health practitioners from seeking medical treatment, for fear that a mandatory report under section 141 of the National Law will be made by their treating practitioner. Section 141B of the Act seeks to address that concern, by increasing the threshold for mandatory reporting by treating practitioners.

Under the current section 141, a health practitioner is required to make a mandatory report if they form a reasonable belief that another health practitioner, for example, practiced whilst intoxicated, or placed the public at risk of harm because the practitioner practiced the profession in a way that constitutes a significant departure from accepted professional standards.

The Act would amend the current section 141 to express that it does not apply to health practitioners (Treating Practitioners) who form such a reasonable belief in the course of providing health services to a health practitioner (the Second Practitioner). Instead section 141B would apply to Treating Practitioners, and the threshold will be a reasonable belief that the Second Practitioner is placing the public at “substantial risk of harm” by practicing the profession due to impairment, intoxication or a significant departure from accepted professional standards. Section 141B would maintain the mandatory reporting requirement for a Treating Practitioner who forms a reasonable belief that a student has an impairment that, in the course of the student undertaking clinical training, may place the public at “substantial risk of harm”.

Under section 141B, the Treating Practitioner would be able to consider any matter relevant in deciding whether the public is being, or may be, placed at a “substantial risk of harm”, including the following matters, which are expressly set out in section 141B(5) of the Act:

the nature, extent and severity of the impairment;

the extent to which the second health practitioner or student is taking, or is willing to take, steps to manage the impairment;

the extent to which the impairment can be managed with appropriate treatment.

The explanatory statement to the Act states the following in relation to section 141B of the Act:

“The higher threshold for reporting, together with the guidance factors treating practitioners may consider, make it clear that only serious impairments that are not being appropriately managed through treatment or mitigation strategies need to be reported if the safety of patients would be at risk.”

2) Health (drugs and poisons) legislation

Medicines and poisons, when used properly, are of great help to the community. They help treat illness, make useful household products and eliminate household pests.

When not used properly, they can harm people. So the government has made laws to control their manufacture, supply and use, so they provide the most benefit for the community,

Medicines and poisons are controlled using:

• licences, which authorise people to manufacture, sell or supply medicines and poisons
• permits, which allow people to purchase or obtain poisons or controlled substances for industrial, educational, advisory or research purposes, or for the provision of health services

Licenses and permits are controlled under the Drugs, Poisons and Controlled Substances Act 1981 and the Drugs, Poisons and Controlled Substances Regulations 2017.

Registered health practitioners (for example, medical practitioners, pharmacists, veterinary practitioners, nurse practitioners and dentists) are authorised to possess and use medicines in the lawful practice of their professions.

3) Mental health legislation

The Mental Health Act (1983) is the main piece of legislation that covers the assessment, treatment and rights of people with a mental health disorder. People detained under the Mental Health Act need urgent treatment for a mental health disorder and are at risk of harm to themselves or others.

In most cases when people are treated in hospital or another mental health facility, they have agreed or volunteered to be there. You may be referred to as a voluntary patient.

But there are cases when a person can be detained, also known as sectioned, under the Mental Health Act (1983) and treated without their agreement.

The Mental Health Act (1983) is the main piece of legislation that covers the assessment, treatment and rights of people with a mental health disorder.

People detained under the Mental Health Act need urgent treatment for a mental health disorder and are at risk of harm to themselves or others.

4) Carers recognition legislation or official policies

About the NSW Carers (Recognition) Act 2010

The objectives of the NSW Carers (Recognition) Act 2010 (the Act) are to enact a Carers Charter to recognise the role and contribution of carers to our community and to the people they care for, and to increase awareness of the valuable contribution that carers make to our community.

The Act:

defines who a carer is

establishes the NSW Carers Charter

creates obligations for public sector agencies and human service agencies

establishes the NSW Carers Advisory Council.

Read the Carers (Recognition) Act 2010.

Following a review of the Act in 2016, the NSW Carers Charter and other parts of the Act were amended in 2017.

Definition of a carer

According to the Act, a person is a carer if they are an individual who provides ongoing personal care, support and assistance to any other individual who needs it because that other individual:

a) is in the target group (as referred to in section 5 (1) of the Disability Services Act 1993), or

b) has a medical condition (including a terminal or chronic illness), or

c) has a mental illness, or

d) is frail and aged.

The Act states that a person is not a carer if they provide support and assistance under a contract of service or a contract for the provision of services, or in the course of doing voluntary work for a charitable, welfare or community organisation, or as part of the requirements of a course of education or training.

The Act also clarifies that a person is not a carer merely because a person is the spouse or de facto partner of the person, or is the parent, guardian, child or other relative of the other person, or lives with the other person.

NSW Carers Charter

The NSW Carers Charter establishes 13 principles:

1 Carers make a valuable contribution to the community

(a) NSW recognises the valuable social and economic contribution that carers make to the community.

(b) Carers should have the same rights, choices and opportunities as other Australians.

(c) Carers’ unique knowledge and experience should be acknowledged and recognised.

(d) The relationship between carers and the people they care for should be respected.

2 Carers’ health and well-being is important

(a) Carers should be supported to enjoy optimum health and well-being and to participate in family, social and community life, employment and education.

(b) Carers should be supported to balance their caring role with other roles, such as work and education.

3 Carers are diverse and have individual needs within and beyond their caring Role

(a) The diverse needs of carers should be acknowledged and recognised in policy, programs and service delivery, taking into consideration culture and language, age, disability, religion, socio-economic status, place of residence, gender identity and sexual orientation.

(b) Aboriginal and Torres Strait Islander values, heritage and concepts of caring should be respected and valued.

(c) The additional challenges faced by carers who live in rural and remote areas should be acknowledged and recognised.

(d) Children and young people who are carers should be supported to reach their full potential.

4. Carers are partners in care

(a) The choices, views and needs of carers and of the people they care for should be taken into account in the assessment, planning, delivery and review of services provided to the people they care for.

(b) Carers should be referred to, and assisted to access, appropriate supports and services.

(c) Support for carers should be timely, responsive, appropriate and accessible.

NSW Carers Advisory Council

The NSW Carers (Recognition) Act 2010 established the NSW Carers Advisory Council. The role of the Council is to advance the interests of carers. The Council provides advice to the NSW Government on legislation, policy and other matters that have a significant impact on carers.

The Minister for Disability Services appoints the council members. More information about the Council and its current members can be found on the NSW Department of Family and Community Services website.

Obligations of public sector agencies

The NSW Carers (Recognition) Act 2010 establishes obligations for public sector agencies, and additional obligations for human service agencies. Public sector agencies include Local Health Districts, NSW Government agencies, local councils, state-owned corporations, Divisions of the Government Service and the NSW Police Force. Human service agencies are public sector agencies that provide services directed at carers or persons being cared for by carers.

Under the Act, public sector agencies must ensure that staff and agents of the agency have an awareness and understanding of the NSW Carers Charter. Public sector agencies must consult with carers or bodies representing carers when developing policies that impact upon carers. The internal human resources policies of public sector agencies must be developed with due regard to the NSW Carers Charter.

Human service agencies have additional obligations under the Act. Human service agencies must take all reasonable steps to ensure that the agency, staff, and agents take action to reflect the NSW Carers Charter. Human service agencies also have reporting obligations under the Act.

What does the Carers (Recognition) Act 2010 mean for carers?

The Act is an important step towards better carer recognition. Although the Act does not give carers legal rights, entitlements or status, it does create obligations for public service agencies and human services agencies which should improve the degree to which they recognise, include and support carers.

The Act has the potential to create real change for carers, but requires a sustained and proactive approach from the NSW Government, Carers NSW and other stakeholders to ensure that the legislation is implemented. Public service agencies need information and support to comply with their obligations and the principles of the NSW Carers Charter. Promotion of the Act will also be important if it is to achieve its aim of increasing awareness of the valuable contribution that carers make to our community.

5) Anti-discrimination legislation

Children and young people legislation

Working with children legislation

Workplace health and safety (WHS) legislation

Many laws impact on our work with young people. These include laws regulating:

drugs – legal or illegal status

mandatory reporting – if you suspect that a child is being physically, emotionally or sexually abused

confidentiality and privacy legislation – to protect the confidentiality of young people

duty of care – to reduce or limit the amount of harm or injury to your clients

OH&S – ensures workers operate in a safe environment to prevent injuries or hazards in the workplace.

Laws regulating drugs

Mandatory reporting

Confidentiality and privacy legislation

Duty of care

Occupational health and safety (OH&S)

Summary

Distance learners

Laws regulating drugs

All drugs are regulated to some extent by laws, which can have particular ramifications for young people.

Drug-related laws act as a form of control of drug use and comprise an important part of the harm minimisation approach (in terms of demand reduction and supply control). Psycho-active drugs have legal, illegal or restricted status. In some instances, however, certain substances are illegal for certain people (alcohol for anyone under the age of 18), or in certain places.

Cannabis as a case study

Workplace learning/writing exercise

The laws relating to cannabis vary from state or state. Find out about the cannabis laws in your area, and write them down. (The Internet is a good place to find current information.)Top of page

Mandatory reporting

In NSW the Children and Young Persons (Care and Protection) Act 1998 requires all community services and health workers to contact their Community Services Department if they have concerns for the safety, welfare or well being of a child. The Act differentiates between children (under 16) and young people (16-17 years). This is an important distinction to make, as it recognises that older adolescents may be physically and emotionally mature and heading towards financial and social independence.

In most states, you must let your community services department know if you suspect that a child is being physically, emotionally or sexually abused. Mandatory reporting means that you don't have a choice. The law says you must make a report.

Some states (e.g. New South Wales) requires that criminal record checks are undertaken on people who wish to work with children and young people.

Confidentiality and privacy legislation

The law generally requires workers to protect the confidential information of their clients. There are certain laws that strengthen clients' protection. For example, the Commonwealth Privacy Act 1988 and the Privacy and Personal Information Act 1998 (NSW) state that an individual's personal and family history cannot be divulged to other organisations without their consent and that these records must be kept in a secure place.

The Freedom Of Information Act 1982 states that young people have the right to request access to their personal records. Workers should be careful to be accurate and concise in their client records and avoid recording their assumptions about clients or opinions that are not based on evidence.

Duty of care

As a worker, you have a legal and moral responsibility to keep your clients safe from harm while they are using a service. This responsibility is known as 'duty of care'.

Workers' responsibility to reduce or limit any harm or injury can sometimes seem overwhelming. For example, your responsibility to one party (for example, your employer) might conflict deeply with your responsibility to your clients. It helps to remember that duty of care is a balancing act.

Sources of harm

Task - writing exercise

Question - Suggest some ways in which clients might come to harm in your organisation?

Physical injury (from an unsafe environment)

Physical injury (as a result of violence from other young people or workers)

Sexual abuse (by another young person or worker)

Infectious disease

Misinformation

Top of page

Aspects to duty of care

There are several aspects to duty of care:

Legal - What does the law require you to do?

Professional/ethical - What do other workers expect us to do?

Organisational - What does your organisation, and its funding body, say you should do?

Community - What do the parents of our clients and other community members expect you to do?

Personal - What do your own beliefs and values suggest you do?

You need to balance the safety of the young person against other concerns such as:

safety of other people/your personal safety

other rights that young people have (e.g. the right to privacy)

aims of the service (e.g. to empower young people)

limits of your organisation (e.g. money and other resources).

Case study / brainstorm exercise - Sula

Sula visits your centre on a regular basis for counselling. One day she arrives and is clearly very unwell. You think she needs medical attention but she says that she does not want to see a doctor. Are you carrying out your duty of care if you call the doctor yourself?

Question - What do you think is the right course of action?

Question - What would you consider to reach your decision?

Occupational health and safety (OH&S)

OH&S legislation exists to ensure that workers can operate in a safe environment. Organisations have an obligation to maintain equipment and to put into place strategies to prevent injuries and control hazards in the workplace. This includes adequate provision for the disposal of hazardous waste materials. OH&S legislation also requires organisations to make arrangements for worker's compensation and obliges them to have detailed emergency plans in the event of a fire or security breach.

Agencies are required by law to develop their own policies to deal with these issues. These policies should also relate to the mental health and wellbeing of workers as stress and burnout are an important consideration for people working in the community services and health fields.

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