MHCC Mental Health Rights Manual

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Chapter 3 Section F: Standards of care

Anyone who is cared for and treated by a health care professional or a health care provider has to be cared for and treated to the appropriate standard of care.

Standards of care come from various sources and cannot be found written in one place.

In this section you can find out more about:

3F.1: Standards of care in general

NSW Health has written policies and protocols and these form part of the standards for public health care providers in NSW and health care professionals that work within the health care system. The NSW Health Suicide Prevention Protocols are a good example of this type of standard.

All health care professionals in NSW (for example, doctors, nurses, dentists, pharmacists) are regulated by separate Acts of Parliament (and Regulations) that deal with their registration and provide for the maintenance of standards. Some health professions have codes of conduct for their profession. Specialist medical practitioners also have 'colleges', which have written standards of practice.

If a health care professional is subject to disciplinary proceedings, his or her conduct will also be subject to 'peer review' by health care professionals working at the same level, and with the same level of experience and authority. Peer review is done to assess whether or not the conduct met the standards for their profession.

Standards of care are different to 'best practice' and usually a health care professional is only subject to disciplinary proceeding if they 'significantly depart' from the relevant standards. A health care professional might have made a mistake, but not necessarily be found to have significantly breached standards.

It should be noted that a breach of a standard of care in the civil law (relevant if you are taking legal action in the courts for compensation) would be tested using a similar but nevertheless different test from a breach of professional standards. A mistake by a health care professional could be 'negligence' in the civil law but not a significant departure from standards in disciplinary proceedings.

A health care professional is much more likely to face disciplinary proceedings for a breach of standards if he or she makes the same mistake or carries out the same unethical conduct more than once, despite warnings. Civil claims for compensation are usually about one particular incident of negligent conduct that has caused significant injury and loss to the person bringing the case.

If you make a complaint, in particular to the Health Care Complaints Commission (HCCC) about things that happen to you in hospital or with your contact with health care professionals, these are all issues that the HCCC will look at to decide what to do about your complaint.

3F.2: Breaches of the Mental Health Act 2007 (NSW) and standards

The Mental Health Act 2007 (NSW) has sections relating to your care and treatment under the Act if you are an involuntary patient in NSW.

These sections of the Act deal with things like:

However, it is important to note that there are no penalties set out in the Mental Health Act 2007 (NSW) if these things don't happen. There is no court, tribunal or other forum you can approach if you believe these requirements have not been followed (that is, the requirement has been 'breached'), except for general complaints bodies. One exception to this may be if you have been unlawfully detained in a Mental Health Facility because there is a serious defect in the process that led to your detention. If you think this may have happened you should obtain legal advice from the Mental Health Advocacy Service.

You can also raise these matters with the Mental Health Review Tribunal, but it has no legal power to deal with breaches of the Mental Health Act 2007 (NSW). Raising these issues with the Tribunal may lead to the Tribunal referring the matter to an appropriate other authority for action or making a (non-enforceable) recommendation or comment to staff or the Medical Superintendent at the Mental Health Facility.

If these sections of the Mental Health Act 2007 (NSW) are breached and you complain, the sections will in fact be treated the same as standards. Proving that someone has not done what they are meant to under these sections of the Act will not necessarily guarantee that a member of staff is disciplined, either internally, or through the more formal professional disciplinary process referred to in the separate section on standards of health care.

This does not mean that complaining about breaches of the Mental Health Act 2007 (NSW) won't have any effect. Complaints often lead to changes in the behaviour and conduct of health care professionals and the practices of health care providers, and can have very positive outcomes. However, such outcomes cannot be guaranteed, and if your complaint is dealt with through a process internal to the health care provider, you will not (for privacy reasons) be told whether a health care professional has been disciplined or counselled. The NSW Government's policy of 'open disclosure' does, however, encourage public health care providers to give feedback to people who have made complaints about any systemic change that has come about because of their complaint, and to apologise and explain when mistakes are made.

 DISCLAIMER

  • The legal and other information contained in this Section is up to date to 30 January 2015
  • This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW) - unless it states otherwise.
  • MHCC does not guarantee the accuracy nor is responsible for the content or the currency of the content of external documents and websites linked to this Manual.