Law Online Tutoring for Jackson v Lithgow City Council

Assessment Task 1

The case of Jackson v Lithgow City Council [2010] NSW CA 136 highlights the critical considerations which must be followed by paramedical professionals when gathering evidence for potential court cases. The Evidence Act 1995 (NSW) sets out the rules which must be adhered to for collecting ‘admissible evidence’ which can enable a court to make a reasonable and reliable judgement in a case[1]. One of the aspects of gathering and inferring evidence is that it should be based on proof and uncertainty rather than an opinion. Moreover, s 78 of the Act states that the opinion is not applicable in court if it is based on the perception of the individual regarding the event[2]. Since the paramedic staff were not witnesses to Mr. Jackson’s fall, their notes regarding their event are deemed as inadmissible because the inference was not supported by medical evidence.

The Work Health and Safety Regulations stipulate that maintaining incident reports is legal requirement[3]. Moreover, The Paramedicine Board of Australia states that in case of giving evidence, practitioners should limit giving their opinion to the extent of their knowledge and take plausible measures to ensure that the information is not disingenuous or distorted[4]. Accordingly, the document keeping guidelines prescribe that data should be legible, accurate and up to date, which means that the record should be created as soon as the event takes place[5]. The National Safety and Quality Health Services Standards state that the information should correctly reflect the incident that took place and should be collected by keeping in view the possible future users of the information by ensuring that exclusionary language is not utilized to record data[6].

Assessment Task 2

By disclosing their status as being HIV positive, the patient is releasing private and confidential information. It is safe and rational to assume that the patient has divulged this information for the purpose of their own medical treatment. The legal standpoint which must be adopted in this case is associated with the Privacy Act 1988 (Cth) and the Privacy and Personal Information Act 1998 (NSW). These regulations state that private information maybe released for the objective that it was provided[7][8]. This indicates that the patient’s status of being HIV positive can be mentioned on the patient record and revealed to the doctor or nurse once the patient is transported to the hospital. This would not be a breach of the patient’s privacy and confidential information from a legal standpoint because the patient revealed this information to ensure that their health and well-being is safeguarded.

From an ethical and moral standpoint, the scenario should be examined from the perspective of whether releasing this information will contribute to the greater good of society and whether hiding this information can pose as a public threat. As a paramedic, I have an understanding that the incident which took place was an accident and that either of the parties did not intend to cause harm to one another. I believe it would be justified from a moral standpoint to inform the other patient about the HIV positive status because as a paramedic, I am in no position to ascertain and be sure of whether the HIV patient poses a direct risk to the other patient or the society at large. Therefore, it would not be ethical to release information that was shared in confidence because there is no reason to be certain that one patient poses a genuine risk for the well-being of the other patient.

S 276 of The Health Act 1911 (WA) presents guidelines regarding the treatment of infectious diseases such as HIV and stated that the Executive Director of Public Health should be informed by the medical practitioners that a patient under their treatment is HIV positive[9]. Even in this case, the legislation states that the identity of the patient should not be revealed. The only situation in which this clause is not applicable is when the Executive Director believes that the person poses a risk to the society as large. The legislation which is applicable in this case highlights that a paramedic is not liable or expected to release this private information about the HIV positive patient to the other patient because 1) the paramedic cannot establish whether the HIV positive patient poses a direct risk to the other patient and 2) the two patients do not share a relationship.

The Privacy Act 1988 presents the exception where the release of the patient’s HIV positive status is permissible to the medical staff handling the case. In this case, it is assumed that the HIV positive patient revealed this information to the paramedic, in confidence, because this information is relevant to the medical treatment of the patient and therefore, the patient believed that it is important to share this with the paramedic. By releasing this information to the medical staff, I will not breach the tenets of the privacy laws because in this case the private information was released to serve the objective of safeguarding the patient’s health. However, in line with the Privacy Act 1988, the information cannot be released to the other patient because it would a breach of privacy laws[10]. The Universal Declaration of Human Rights highlight the right to privacy. The Australian Human Rights Commission reiterates the importance of the right to privacy[11].

As a paramedic, I would only choose to reveal this information to the triage nurse or the doctor when the patient is transported to the medical facility. Moreover, this information will be mentioned on the patient’s record as it would help medical practitioners take appropriate decisions regarding the patient’s medical care and treatment. I will not release this information to the other patient or any other individual because as a paramedic it is not within my capacity or judgement to establish whether the HIV positive patient poses a threat to society or the other patient, more so, because the HIV positive patient did not threaten the other patient or cause intentional harm to them but both parties were injured due to an accident.

My duty of care within the legal capacity is dictated by the tenets of the Privacy Act 1988, whereby, I am only allowed to release private information for the purpose that it was shared. Accordingly, from a professional and ethical standpoint, I am not in the capacity to make judgements about the threats posed by the HIV positive patient and should believe that the information was revealed to me in confidence to ensure that the patient receives the necessary medical care. The Health Act 1911 also places tremendous importance on the need to protect the identify of HIV positive patients. The only way the other patient may know about this information is if the HIV positive patient chooses to have it revealed to the other party. In this case it would be the duty of the hospital to counsel the HIV positive patient or encourage the other patient to undergo HIV testing without uncovering the HIV positive status of the other individual.

I believe community members would only expect this information to come to the forefront if it posed a direct threat or risk to the society at large. Only in that case, the identify of the HIV positive patient may come to the forefront and this announcement should only be made by the Executive Director of Public Health. I personally believe that the HIV positive patient’s primary medical team should know about the health status in this case to better guide their treatment-related decisions and it should not be revealed to any other individual. Divulging this information to another party or entity would be a grave breach of the patient’s private information and confidentiality.

References

[1] Evidence Act 1995 (NSW). n. pag.

[2] Ibid., n. pag.

[3] WorkSafe Australia (2020). Record Keeping. Work Safe Australia. Accessed online at [https://worksafe.tas.gov.au/topics/Health-and-Safety/managing-safety/getting-your-safety-systems-right/record-keeping#Specific-legal-requirements]

[4] Paramedicine Board of Australia (2018). Code of Conduct. Paramedicine Board of Australia. p. 20.

[5] Paramedicine Board of Australia (2018). Code of Conduct. Paramedicine Board of Australia. p. 19.

[6] The National Safety and Quality Health Services (NSQHS) Standards (2020). Action 6.11 Documentation of Information. The National Safety and Quality Health Services (NSQHS) Standards. n. pag.  

[7] Privacy Act 1988 (Cth).

[8] Personal Information Act 1998 (NSW)

[9] Health Act 1911 (Cth).

[10] Privacy Act 1988 (Cth).

[11] Australian Human Rights Commission (2020). Human Rights – what do I need to know? (2008). Australian Human Rights Commission. Accessed online at [https://humanrights.gov.au/our-work/human-rights-what-do-i-need-know-2008]