Units

---

Sample subject outline - 5 Week Teaching Period - 5 2012

Note: Subject outlines often change before the semester begins. Below is a sample outline.

Rationale

Health law is an important and growing area of legal practice and attracts much attention from academic, social and political commentators across a range of disciplines.

A detailed knowledge and understanding of the law relating to consent to treatment is a core legal issue in health law. This area involves the consideration of complex legal, ethical and policy considerations. In recent times, decisions of the High Court of Australia and courts in other jurisdictions have emphasised the importance of the rights of patients to make decisions for themselves in relation to medical treatment where they are competent to do so and absent special circumstances.

The law of torts has traditionally provided the primary mechanism whereby those whose rights have been infringed by health care professionals without lawful excuse may be awarded monetary compensation in appropriate cases. Where a patient has validly consented (based on information in broad terms as to the nature of the procedure to be performed), the action lies in negligence rather than trespass. In recent times there have been significant developments in the law of negligence, especially as it applies in medical cases. In addition, following the so called insurance crisis and a review of the law of negligence, legislative changes to the law of negligence have been enacted across Australia; the full impact of these changes remains to be seen.

It is, therefore, appropriate that a study of the law relating to consent and clinical negligence (that is, the liability of doctors, dentists and other health care professionals in negligence) be the subject of an LLM unit.

Aims

The aim of this unit is for you to develop a detailed knowledge and understanding of the law and underlying ethical and policy considerations relating to consent to treatment and clinical negligence, and to provide you with an opportunity to apply this knowledge and understanding to the researching of an aspect of this area of the law which is of particular interest to you.

During your studies you will be afforded an opportunity to critically analyse and synthesise the law, ethical considerations, policy, and contemporary issues in this area, with a view to you being able to understand how the law may develop in this area and contribute meaningfully to discussions relating to such developments.

You will be introduced to a wide variety of contemporary topics in consent to treatment and medical negligence in order to assist you to formulate ideas for your research topic and paper.

Objectives

On completion of this unit, you should be able to demonstrate:
1. a knowledge and understanding of the law relating to consent to treatment and clinical negligence and an understanding of how these principles have developed;
2. an appreciation of the dynamic nature of the law relating to consent to treatment and clinical negligence in terms of its continuing development and the impact of various economic, ethical, political and social factors on the development of the law in this area;
3. a deep understanding of, and an ability to synthesise, the more contentious contemporary issues in the law relating to consent to treatment and clinical negligence and to apply sophisticated, critical and analytical skills to their possible resolution;
4. an ability to: engage in the critical discussion, or argument, of these issues; communicate complex ideas and concepts; and show an appreciation of the differing views of others on the issues; and
5. an ability to conduct and present legal research at an advanced level, and in a formal manner suitable for publication in a refereed journal, on a topic of contemporary relevance and of comparative originality.

Content

The unit, at an advanced level, examines selected contemporary issues, disputes and dilemmas concerning the law relating to consent to treatment and clinical negligence, and will be regularly revised to adapt to changes, developments and emerging issues in law, ethics and policy. The unit content is focused on the law in Australia and will include consideration of the impact of recent legislative enactments across Australia, with particular focus on Queensland, but it may also include international comparisons.

The principal generic skill developed is the ability to identify and critically evaluate the law in relation to consent to treatment and clinical negligence.

Specific topics to be covered may include, but are not limited to, the following:

(a)Introduction and underlying ethical and policy considerations

(b)Consent to Treatment

• Why consent is necessary


• Establishing consent


• Assessing competence


• Children and consent


• Vulnerable persons and consent


• Incapacitated persons and consent


• Refusal of treatment


• Exceptions to the requirement to obtain consent

(c)Clinical Trespass

• Distinguishing trespass actions from negligence


• Clinical trespass and the Civil Liability Acts

(d)Clinical Negligence

• Clinical negligence and the Civil Liability Acts


• Duty of care including current issues and duties to third parties


• Standard of care and breach of duty


• Causation


• Defences and ad hoc protections


• Assessment of damages


• Additional statutory changes to the common law


• Institutional Liability including hospitals and administrators


• Apportionment of responsibility and contribution

(e)Select contemporary aspects of medico-legal litigation practice and procedure

Approaches to Teaching and Learning

The unit will be conducted in intensive mode over 5 days (approximately 5-6 hours of classes each day) with a total of 26 hours of classes.

Attendance at classes is essential. The emphasis in these classes is on an interactive and student centred learning environment. Each class will commence with the lecturer introducing the topic and identifying key areas for discussion, followed by active class participation in the resolution of case studies directly relating to the issues relevant to the topic under discussion. You will be expected to have some familiarity with the material set as readings for each topic and be capable of contributing to a meaningful discussion of the relevant issues.
You will have the opportunity during the week to informally consult with the academic staff about any aspect of the unit and especially about the topic for your research paper.

This unit will not be taught externally.

Assessment

Assessment in this unit is both formative and summative.

Formative assessment:

During the intensive you will be provided with formative feedback by the teaching staff and your fellow students in class.

You will also receive formative feedback on the research paper through the lecturer's comments on the choice of topic for the paper when approval is sought.

Assessment name: Discussion Forum
Description: You will be assessed on your attendance at all classes, your demonstrated preparation of the set materials and case studies, your demonstrated knowledge and understanding of the relevant unit content, and your participation in group discussions. The full and detailed criteria can be found on the OLT site for the unit.

Attendance is required on each of the five days of the intensive.
Relates to objectives: This piece of assessment is linked to objectives 1, 2, 3 and 4.
Weight: 20%
Internal or external: Internal
Group or individual: Individual
Due date: During Class

Assessment name: Research Paper
Description: You are required to choose your own assignment topic. You must obtain approval of your topic, by submitting a short written outline of your topic within two weeks of the completion of the intensive. You will receive feedback on your topic and you must attach a signed Approval of Assignment Form to your assignment when it is submitted.

In the research paper, a high level of critical analysis and argument is expected and you must, amongst other things, consider the conceptual, economic, political and/or social issues associated with the area of consent to treatment and/or clinical negligence relevant to the assignment topic. The full and detailed criteria can be found on the OLT site for the unit.

The maximum word limit for the assignment is 6,000 words and all the usual Faculty rules regarding word limits, presentation, student details, plagiarism, penalties for late submission, etc will apply.
Relates to objectives: You are required to choose your own assignment topic. You must obtain approval of your topic, by submitting a short written outline of your topic within two weeks of the completion of the intensive. You will receive feedback on your topic and you must attach a signed Approval of Assignment Form to your assignment when it is submitted.

In the research paper, a high level of critical analysis and argument is expected and you must, amongst other things, consider the conceptual, economic, political and/or social issues associated with the area of consent to treatment and/or clinical negligence relevant to the assignment topic. The full and detailed criteria can be found on the OLT site for the unit.

The maximum word limit for the assignment is 6,000 words and all the usual Faculty rules regarding word limits, presentation, student details, plagiarism, penalties for late submission, etc will apply.
Weight: 80%
Internal or external: Internal
Group or individual: Individual
Due date: 8 Wks After Intensiv

Academic Honesty

QUT is committed to maintaining high academic standards to protect the value of its qualifications. To assist you in assuring the academic integrity of your assessment you are encouraged to make use of the support materials and services available to help you consider and check your assessment items. Important information about the university's approach to academic integrity of assessment is on your unit Blackboard site.

A breach of academic integrity is regarded as Student Misconduct and can lead to the imposition of penalties.

Resource materials

There is no prescribed text for this unit.

Recommended references include:

• Madden B and McIlwraith J, Australian Medical Liability, LexisNexis Butterworths, 2008


• White B, McDonald F and Willmott L (eds), Health Law in Australia, Thomson, 2010
  
• Freckelton I and Petersen K (eds), Disputes & Dilemmas in Health Law, The Federation Press, 2006


• McIlwraith J and Madden B, Health Care and the Law, 5th ed, Law Book Co, 2010


• Skene L, Law and Medical Practice: Rights, Duties, Claims and Defences, 3rd ed, Lexis Nexis Butterworths, 2008


• Devereux J,Medical Law, 2nd ed, Cavendish Publishing, 2002


• Bennett B, Law and Medicine, Law Book Co, Sydney, 1997


• Skene L, You, Your Doctor and the Law, Oxford University Press, Melbourne, 1990

Additional materials will be made available to students in print form and on the OLT site for the unit.

Risk assessment statement

There are no out of the ordinary risks associated with this unit.

Disclaimer - Offer of some units is subject to viability, and information in these Unit Outlines is subject to change prior to commencement of semester.

Last modified: 03-May-2012