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Chapter 2 Section A: The Legal Framework

Overview of the legal system

The legal system in NSW (and Australia) is based on the system widely used in the English-speaking world. This system originated from Great Britain and was taken to Australia, New Zealand, Canada and other Commonwealth countries including (to some extent) the USA. These are sometimes referred to as the ‘common law’ countries. This section provides only a very brief overview of the legal system.

For more about the law and legal system, access Hot Topic No. 70 from the State Library of NSW website by clicking here.

Australia’s legal system has some particular features:

  • Strict separation between the institutions involved with law making (Parliament and the Executive) and the interpretation of the law (the Judiciary (or courts).
  • An adversarial system of fact-finding in the courts rather than an inquisitorial system found in Europe and other parts of the world.
  • The ‘common law’ where judges make law when there are gaps in the written law made by Parliament and sometimes the Executive, and are required to apply the law laid down in previous decisions of courts at the same or a higher level in the court system (the doctrine of precedent).
  • A presumption of innocence by the Courts when someone has been charged with a crime.

In this overview section, there is information about:

This part of the Manual then outlines some of the laws and standards that are particularly relevant to mental illness that apply in NSWacross Australia and internationally.

2A.1: What are laws?

Laws are rules that that are enforced by the Executive branch of government (the Cabinet and Ministry) or the Judicial branch of government (Courts) or both. They are rules that apply to everyone; no-one is above the law.

If you break a law or ignore a law, some consequence may follow. Another person might take you to court to challenge your action or the government in one form or another, such as the police who may take legal action against you, particularly if the law you break is a criminal law. This process of the government taking action when a law is broken is what is meant by ‘enforcement’ of the law.

Statute law or legislation is written law made by Parliament. These are called ‘Acts’ of Parliament. Before Parliament decides to pass (that is, vote in favour of) an Act of Parliament (that is, while the members of the Parliament are debating what should be in the Act and whether or not to vote in favour of it), it is called a ‘Bill’.

Regulations are a form of legislation that is made by the Executive with the Parliament’s approval. Regulations can only be made where there is an Act that specifically sets out that regulations can be made in relation to particular matters dealt with in the Act.

Common law is law decided by judges to fill in gaps in the written law.

In Australia, laws can be made by state parliaments, such as the NSW Parliament, or the Federal/Commonwealth Parliament. Local government (Councils and Shires) also makes laws; these are called ‘By-laws’.

2A.2: What are rights?

Rights are ‘just claims’ that come from laws, tradition or morality.

Concepts of ‘human rights,’ ‘rights’ more generally, and legal and service user rights specifically, play an important role in mental health policy and service delivery in Australia. These terms are often used loosely and interchangeably, but in reality they can mean quite different things. In Chapter 3 we look specifically at the Australian Charter of Healthcare Rights and at other health care rights as these are recognised in law. In Chapter 4 we look specifically at the rights of persons who are subject to involuntary detention and treatment under the NSW Mental Health Act 2007. In the following section, we look specifically at human rights, which are increasingly becoming a major driver of reform in mental health policy in Australia.

2A.2.1: What are human rights?

‘Human rights’ are basic rights and freedoms to which all humans are said to be entitled.

They are said to be ‘inherent’ to the person because they can neither be given or taken away from them. Of course, this does not mean that these rights are not capable of being violated. The violation of a human rights deprives a person of the ‘enjoyment’ of that right but it does not strip the person of the right.

Human rights are also ‘universal’ in the sense that they apply to every person irrespective of place or time, and irrespective of a person’s nationality, gender, national or ethnic origin, skin colour, language, age, disability or any other status.

There are two basic ‘categories’ of human rights: civil and political rights, and economic, social and cultural rights. Civil and political rights are those that recognise and protect personal liberties, in particular, from arbitrary interference from the State. Examples include the right to life, the right to liberty and security of the person, and the right to freedom of speech. Economic, social and cultural rights are those that are concerned, principally, with the economic and social status of persons. Examples include the right to health, the right to education, the right to work, and the right to social security. The distinction between civil and political rights and economic social and cultural rights still has some legal significance, but all human rights are now widely recognised as being ‘indivisible’, ‘interdependent,’ and ‘inter-related’. This means that it is now well accepted that it is impossible to realise any human right in isolation from other human rights.

It is important to recognise the difference between negative and positive rights. A negative right is a right not to be subjected to an action of another person or group; negative rights permit or oblige inaction. A positive right is a right to be subjected to an action or another person or group; positive rights permit or oblige action. For example: a negative right is not to be discriminated against, and a positive right is for people living with disability to have equal access to services as non-disabled people.

Generally speaking, ‘human rights’ are those that have been recognised or declared ‘human rights’ by the United Nations General Assembly (although in many cases these rights have been recognised in other contexts over hundreds of years).

The Universal Declaration of Human Rights (UDHR) is probably the best-known international statement of human rights. In a disability context (which includes persons with mental health conditions), the most important human rights document is the United Nations Convention on the Rights of Persons with Disabilities (CRPD).

Some of what are seen as human rights are found in the NSW and Australian laws that now operate, both statute law (Acts and regulations) and common law. A ‘right to privacy’ is an example of this sort of human right. The right to privacy is found in the Acts of Parliament about personal information and it is beginning to be found in ‘the common law’ through decisions (judgments) of English courts in particular.

Because Australia, unlike other comparable countries, does not have a legislated ‘Charter of Rights’, ‘Human Rights Act’ or ‘Bill of Rights’ that sets out enforceable human rights, many of the human rights that you might think are enforceable under Australian law, are not part of any written law in Australia.

For example, although voting is compulsory in Australia for adults over 18 years of age, there is no enforceable ‘right to vote’. The same applies to the ‘right to health care’ and even the ‘right to life’.

The Universal Declaration of Human Rights (UDHR) and the Convention on the Rights of Persons with Disabilities (CRPD) other international rights documents are part of international law.

But just because a right is set out in international agreements on human rights, does not mean you can go to an Australian court or the police and ask that this right be enforced. For this to happen, the right has to be included in Australian law, either in legislation or have developed as part of the common law.

This does not make documents like the UDHR and CRPD are of no use. If you or a group you belong to think that your rights have been ignored, then you can refer to documents like the UDHR and CRPD when you talk to government or an organisation about your problem. Sometimes, but unfortunately not always, both governments and organisations can be persuaded to protect human rights stated in international documents like the UDHR.

Many people in Australia want the rights set out in the UDHR to be included in enforceable legislation in Australia in the form of an Australian Charter of Human Rights.

Currently there is no single piece of legislation in NSW or at the national level in Australia that sets out human rights (there is such legislation in both the Australian Capital Territory and Victoria). Some of the internationally recognised rights are found in separate NSW and Commonwealth legislation, in common law, and a very limited number are found in the Australian Constitution.

2A.3: What are standards and how are they different to laws and rights?

Standards generally either set out what should be achieved or done, depending on what the standards are about. There are many ways that standards are documented, and a range of places where they can be found. Some standards, such as the Disability Standards for Education 2005 (Cth) are actually written down in legislation and, as such, set out what is required and they are enforceable. Other standards come about as a result of custom and practice, and are not written down at all. There may be complaints bodies that have specific responsibility for dealing with breaches  (for example the Insurance Ombudsman). Other standards may only be enforced by the civil law if the person who received the health care takes legal action for compensation when the standards are breached.

Standards in health care are not generally documents that legally control particular behaviour or prescribe what is forbidden and what is permitted. Standards are usually a statement of a level of quality of performance or conduct that is regarded as normal, adequate or acceptable.

For more information about health care standards, click here . You can also find out about where health care standards are found and how breaches of such standards are likely to be identified and what can happen if a health care standard is breached.

2A.4: Health care standards

Standards in health care are not necessarily a statement of best practice, but a statement of acceptable practice. Standards do not set out clearly what should be done or what should not be done (as laws often do). They are not focused on individual claims (as rights usually are).

However, it can be argued that the existence of standards in health care gives everyone a right to health care to the appropriate standard.
For more about standards relevant to health care, click on the links below:

2A.4.1: Where are health care standards found?

Standards for health care are often, but not always, found in a written form.

Examples of written standards for health care are found in:

  • NSW Health policies and protocols;
  • National Standards for Mental Health Services;
  • Codes of conduct for health care professionals;
  • Standards set by colleges of specialist medical practitioners, such as the Royal Australian College of General Practitioners (RACGP).

You can find out about the relevant health care standard by asking a health care professional in the relevant area of health care, or you can contact the relevant health care professional body. If a professional body or the Health Care Complaints Commission are dealing with a consumer complaint about a health care provider, they may ask another health professional to comment on the performance or conduct in question. This is called ‘peer review’. The peer reviewer in this situation advises whether they believe the conduct or performance of the health care professional in question was acceptable or not acceptable according to the ethical and/or performance standards of the profession.

Even if a health care professional is found to have breached the standards they have not necessarily broken any law. The outcome for the health care professional in this situation could range from no action, to counselling about the breach of standards, to deregistration, to conditions being placed on their professional practice,with various other outcomes in between. The outcome for a health care provider (like a hospital) if basic standards have been found to be breached is usually the requirement that the provider will take steps to ensure that similar breaches don’t happen again.

The law of negligence (part of the common law) refers to a ‘standard of care’. Expert evidence is usually required to establish whether a person or an organisation has breached a ‘standard of care’. The law of negligence applies legal tests to establish whether a health care professional or health care provider has been negligent. These tests are different from, but similar to the tests used in deciding whether a professional has failed to meet professional standards.

2A.4.2: How are breaches in health care standards identified?

The usual way that breaches of standards are identified is through complaints by people who have been directly affected by the breach, or by their family members. It is important to remember that often the only people that are aware of conduct or omissions that constitute breaches of standards are the person who is getting the health care and the health care professional. If the person getting the health care does not complain, then the breach of standards is likely to go undetected. The complaints process, through the Health Care Complaints Commission (HCCC) in NSW, is a vital element in the maintenance of health care standards.

There are also times when health care professionals report alleged breaches of standards by their fellow professionals or by health care providers.

NSW Health has a policy of identifying critical incidents in the NSW public health system and then doing a ‘root cause analysis’ of what happened. The outcome of this process is focused on possible recommendations for systemic change. This process does not identify evidence for possible disciplinary proceedings against a health care professional or lead to compensation for a patient.

Another way breaches of standards may be identified is through Coronial Inquests. Coroners, who are magistrates (a type of judge), conduct Inquests, which are court proceedings to find how a person died and what caused their death. The Coroner can make recommendations relevant to their findings on, for example, deaths in hospital. These might be recommendations to health care providers about changes in policies and procedures to prevent further deaths.

Coroners cannot make findings that a particular individual is responsible for a death but do have power to refer individuals to the Director of Public Prosecutions (DPP) for possible criminal charges, or to the HCCC for possible investigation and disciplinary action.

2A.4.3: What happens if health care standards are breached?

A breach of a standard by a health care professional may lead to disciplinary action. Disciplinary action, if a breach of standards is established, can range from a caution with professional counselling, directions to undertake further education, to conditions being imposed upon their professional practice, and ultimately to suspension or deregistration from their profession. Suspension or deregistration are more severe and much less common than other disciplinary actions.

A breach of standards by a health care provider such as a hospital, aged-care facility or medical centre should lead to changes in procedures and protocols of provider to ensure the mistake is not repeated. In some cases it may also lead to the cancellation of accreditation that is necessary for the provider to operate in its field.

For more information about Complaints and Disputes follow this link

Updated November 15, 2019