Seeking legal advice
PrintAA
Seeking legal advice for health professionals

IMPORTANT NOTE!

The information below is aimed primarily at clinicians working within the NSW Health system, for example within Local Health Districts. Although it may be useful for other health professionals, only those health professionals who are employed within the NSW Ministry of Health are eligible to seek and obtain legal advice and services from the Ministry’s Legal and Regulatory Services Branch (Legal Branch). If other health professionals require legal advice, they may wish to make enquiries within their own organisation, medical defence organisation or professional association.

The law in Australia applies to all citizens, regardless of cultural heritage or personal preference. In practice however, communicating and facilitating end of life decisions and conversations with patients from a range of diverse cultural and linguistic backgrounds can provide challenges to health care professionals.

These challenges are not new. Every day, health care professionals respond to patients and their families whose preferences and norms vary greatly from family to family, patient to patient. In practice, each patient requires their case to be managed sensitively and discreetly by health care professionals.

When and from where should I seek legal advice?

Health Professionals working within the NSW Ministry of Health can seek advice and support from their institution or Local Health District. They may also seek advice from the Legal and Regulatory Services Branch (Legal Branch) of the NSW Ministry of Health.

Only health professionals employed within the NSW Ministry of Health are eligible to seek and obtain legal advice and services from the Ministry’s Legal Branch.

If other health professionals who are not part of the NSW Ministry of Health require legal advice, they may wish to make enquiries within their own organisation, medical defence organisation or professional association.

If you think you require legal advice or support, first:

  • Consult your senior treating clinician

If unresolved, you may contact one of the following:

Legal Counsels or Senior Administration in your institution or Local Health District (LHD)
To contact when:

  • You’ve consulted with your senior treating clinician and agree that further clinical & legal advice is needed.

Each LHD has varying structures in place to provide legal and clinical support. Some LHDs employ in-house lawyers who may be able to assist. Each LHD should have a process in place for escalating matters internally, if required. Staff in positions such as the following may be able to assist:

  • Director of Clinical Governance
  • Director of Clinical Services
  • Facility Manager
  • LHD’s legal counsel

These steps should ordinarily occur before there is a need to involve Legal Branch.

 You may need to contact:

NSW Ministry of Health Legal & Regulatory Services Branch
To contact when:

  • There is an urgent case that requires legal advice
  • Any case being referred to the Supreme or Family Court
  • Senior administration of your Local Health District refers a case to NSW Ministry of Health Legal and Regulatory Services Branch for advice.

More details: http://www.health.nsw.gov.au/legislation/Pages/default.aspx

IMPORTANT NOTE!

Only health professionals employed within the NSW Ministry of Health are eligible to seek and obtain legal advice and services from the Ministry’s Legal and Regulatory Services Branch (Legal Branch). If other health professionals require legal advice, they may wish to make enquiries within their own organisation, medical defence organisation or professional association.

What may happen next – referral of your case onto:

The Supreme Court of NSW (or the Family Court if the patient is 18 years or under) Guardianship Division, NSW Civil and Administrative Tribunal (NCAT)* The Public Guardian
To be involved when an LHD:

  • Is unsure of whether the proposed treatment or treatment limitation is in accordance with the duties of health care practitioners.
  • Has doubts whether an advance care directive is valid.
  • Has doubts about how an advance care directive should be applied.
To be involved when:

  • The patient lacks decision-making capacity and:
  • You need substitute consent to treatment and there is no Person Responsible available or able to provide consent.
  • You need consent to special medical treatment.
  • You have concerns that the Person Responsible is not making decisions in the best interest of the patient and you have provided to them all necessary information to make a decision.
  • The patient is objecting to treatment.

Note that you may apply for:

  • consent to one-off treatment; or
  • the appointment of a guardian (as Person Responsible) for ongoing decision making; or
  • both of the above

*Formerly known as the NSW Guardianship Tribunal

 

To be involved when:

  • The Guardianship Division of the NCAT has appointed the Public Guardian as the patient’s guardian, with medical and dental consent function or health care function, and:
  • you need consent to treatment, or
  • you need to consult about the patient’s care.
  • A patient’s appointed guardian needs support in their role as a guardian – direct enquires to the Private Guardian Support Unit.
  • General advice is needed about guardianship practice.

The following flowcharts describe some of the processes recommended for escalating legal advice and support in certain end of life scenarios:

Resolving End of Life Conflicts flowchart

 

Am I at risk of being taken to court or the Tribunal by seeking legal advice?

  • Seeking legal advice may avert the need to go to court (the Supreme or Family Court) or the Guardianship Division of the NCAT, and will not necessarily mean that a matter will go as far as the court or a Tribunal hearing.
  • The majority of end of life cases in NSW are resolved within the treatment and care setting, between treating teams and patients’ families.
  • There have been very few end of life cases in NSW which have lead to Supreme Court proceedings (approximately only one per year).

Note: Seeking guidance from the Supreme or Family Court about end of life issues (e.g. on the validity of an advance care directive or whether a treatment plan is in the patient’s best interests) is a different process and has different implications than cases where a Local Health District (LHD) and/or health practitioner are sued in negligence by a patient or family seeking financial compensation.

How can legal advice help me?

Seeking legal advice may help you:

  • Clarify what your legal obligations as a health care practitioner are to your patient, their family, your employing health authority, and ultimately the courts.
  • Provide you with information that may help in discussions with your patient or their Person Responsible in regards to end of life decisions.

In some cases, court orders can provide protections to health practitioners by providing clarity and guidance on how to proceed, for example in the case of court rulings on how an existing advance care directive should be applied in practice.

Will seeking a resolution through the courts or Tribunal lead to delays?

  • Cases that go to court (the Supreme or Family Court) are often urgent applications and are therefore resolved fairly quickly, within days. Cases are rarely drawn out over extended periods of time.
  • Urgent applications to the Guardianship Division of the NCAT can be heard within 24 hours. The Tribunal operates an after-hours service to ensure cases can be attended to at any time. All applications for consent to treatment or for the appointment of a guardian are triaged according to the risks to the person identified in the application – the triage categories range from hearings within 24-72 hours to 10 days, 28 days or within 3 months for the most complex and contested but non-urgent applications.

If I go to court, what is expected of me?

Matters will only proceed to the courts (the Supreme or Family Court) with the authorisation of your Local Health District (LHD) Chief Executive. As these types of cases are considered to be significant matters, NSW Ministry of Health Legal & Regulatory Services Branch will be notified. Your LHD will appoint you a lawyer and ensure that you are supported throughout the process.

The lawyer representing the LHD will explain what is expected of you, and what preparation is required. This may include asking you to:

  • Prepare a written summary of the patient’s history, diagnosis, prognosis and treatment plan
  • Obtain a second specialist medical opinion in writing, possibly from an expert from outside your institution
  • Discuss this course of action with the family

IMPORTANT NOTE!

Only those health professionals who are employed within the NSW Ministry of Health will be supported by the Ministry’s Legal and Regulatory Services Branch (Legal Branch) if a matter proceeds to court. If other health professionals require legal advice or support if a matter proceeds to court, they may wish to make enquiries within their own organisation, medical defence organisation or professional association.

If I lodge an application with the Guardianship Division of the NSW Civil and Administrative Tribunal, what is expected of me?

In making an application for consent to treatment or for the appointment of a guardian, you must:

  1. Fill out all the relevant sections in the application form, including providing your contact and professional details
  2. Tell the patient that you are making an application about them
  3. Tell the Person Responsible that you are making an application about the patient
  4. Provide details of all the people who have an interest in the application even if they disagree with it
  5. Supply evidence to support your application including information about:
    • The patient’s disability
    • The patient’s lack of capacity
    • The need for a decision to be made
    • The patient’s views and the views of the patient’s spouse, carer and other key people
  6. Include any available assessments and medical reports from other health professionals
  7. Keep the Tribunal informed of any changes to the patient’s circumstances while your application is being considered
  8. If the application proceeds to a hearing, give the patient a copy of the application and notice of hearing (both will be sent to you by the Tribunal)
  9. Attend the hearing and arrange for the patient to attend or participate

A thorough application is likely to be processed faster and having at least one professional medical report attached to the application is recommended.

Anyone can apply, provided you have a genuine concern for the welfare of the person.

If you are making an application for consent to treatment, you must also provide information about:

  1. The patient’s condition
  2. The proposed treatment
  3. Alternatives to the proposed treatment
  4. The general nature and effect and any significant risks associated with all possible treatments
  5. The reasons why you propose the specific treatment be carried out

If you are making an application for guardianship, you should also:

  1. Provide information about the types of decisions that need to be made for the person (e.g. accommodation, services, health care, medical and dental consent)
  2. Consider proposing someone to be appointed as a guardian, for example a family member, friend or the Public Guardian if there is no private person available to be appointed

In the case of Margaret:

Margaret’s family continue to disagree with the treating team, and insist on dialysis despite the existence of the advance care directive, numerous discussions and obtaining a second medical opinion that supports the initial prognosis.

When should health care practitioners seek legal advice, and how?

  • While Margaret’s family’s wishes legally cannot override Margaret’s valid advance care directive, her senior treating clinician may want to seek further legal advice if they had any doubts to what his/her legal obligations were.
  • The senior treating clinician would inform senior hospital administration if they hadn’t done so already, and discuss whether the case needed to go further either by bringing in their Area Health Service’s legal counsel and/or the Ministry of Health Legal and Regulatory Services Branch.
  • Ultimately, agreement was reached and Margaret’s palliative care plan was activated.

Margaret died shortly after in the presence of her family.

More Resources:

  • Further information about the NSW Civil and Administrative Tribunal (NCAT) and its Guardianship Division can be found here.
  • Applications to the NSW Civil and Administrative Tribunal (NCAT) regarding guardianship can be made by accessing this Tribunal’s application page.

Key Contacts

NSW Health Legal & Regulatory Services Branch

Note: Only those health professionals who are employed within the NSW Ministry of Health are eligible to seek and obtain legal advice and services from the Ministry’s Legal and Regulatory Services Branch (Legal Branch). If other health professionals require legal advice, they may wish to make enquiries within their own organisation, medical defence organisation or professional association

Phone: (02) 9391 9606
Fax: (02) 9391 9604
Email: legalmail@doh.health.nsw.gov.au
Web: www.health.nsw.gov.au/legislation

Guardianship NSW Civil and Administrative Tribunal (NCAT)*Phone: (02) 9556 7600
Toll Free: 1800 463 928
TTY: 02 9552 8534
Email: gt@ncat.nsw.gov.au
Web: www.ncat.nsw.gov.au/ncat/guardianship.html
*Formerly known as the NSW Guardianship Tribunal
Public Guardian NSWPhone: (02) 8688 2650
Fax: 02 8688 9797
TTY: 02 9552 8534
Email: informationsupport@opg.nsw.gov.au
Web: www.publicguardian.lawlink.nsw.gov.au
Legislation, Policies and Guidelines