November 17, 2015 FST354 ETHICAL & LEGAL ASPECTS IN PHYSIOTHERAPY Presented by: Mr. A.P. Frewen UFS November 17, 2015

CHAPTER 3 CIVIL LIABILITY

What is “liability” ? Simply put, liability is whether a person can be held responsible for his or her actions in civil or criminal proceedings. To illustrate this: If you fall at home and break your leg you cannot sue your house as you only have yourself to blame. –However: Should you fall in a shopping centre because there is water on the floor you may be able to sue the owner of the centre for his negligence. Similarly you can also be charged with, for eg. culpable homicide or assault, if you negligently cause death or injury of a patient.

FORMS OF LIABILITY Liability van be divided into the following categories: a)Legal liability – the person is held responsible by law b)Criminal liability – such as murder and theft c)Delictual liability – compensating someone for causing damage to them d)Contractual liability – responsibility for breaching an agreement such as an employment contract e)Professional liability – being held responsible by, eg. the Health Professions Council (HPCSA)

Before you as a professional practitioner can be held liable for certain actions, certain elements must be proven on a balance of probabilities. “balance of probabilities” is a technical legal concept which essentially means that if we place your actions on a scale it is more likely that they weigh more to one side than the other. The one side of the scale is in favour of the person suing and the other side is the person being sued.

THE ELEMENTS THAT HAVE TO BE PROVD: Conduct Unlawfulness Causation Fault Damage / Prejudice Accountability

Each element will accordingly be discussed separately, but please bear in mind that EACH ONE must be proved in order to hold a practitioner liable. –If one of the elements cannot be proved, the practitioner will not be held liable! –Liability is best explained by way of examples. Read the following scenario:

EXAMPLE: Vuyo is a 75 year old male. He recently recovered from a motor vehicle accident in which he, amongst other things, broke his legs. After the plaster had been removed, he approaches Freddy, a physiotherapist. During Vuyo’s first session with Freddy, Freddy picks him up from his wheelchair whilst adjusting the bed and causes Vuyo to fall and suffer serious injuries. Vuyo wants to institute a claim against Freddy for his medical expenses in this regard.

In order to determine whether Freddy can be held liable for Vuyo’s damages, each of the elements of liability need to be proved. Each of these elements will accordingly be discussed with reference to the given example:

1. CONDUCT Definition: –Conduct is any volitional, personal behaviour. This includes both a positive act (commissio), such as administering the wrong medication to a patient, or a passive failure to act (omissio), eg neglecting to diagnose a specific condition. If it is expected of a person to take an action and that person fails to do so, they are liable for that failure. The failure must be controlled by domination of will. In our example: –Freddy knew that Vuyo is an elderly patient, en should have been more cautious. In the given situation he performed a positive act that caused Vuyo’s fall, namely: to adjust the bed whilst he was trying to lift Vuyo from the wheelchair.

2. UNLAWFULNESS Definition: A person acts unlawfully when he/she does what is wrong in the eyes of society. (acting against the good norms of society) These acts are usually determined by legislation and case law and change over time due to the development of society. (eg: years ago adultery used to be unlawful and punishable!!!) In our example: –Freddy’s conduct was unlawful because society expects of health care workers to act with a certain degree of care and skill. Freddy acted unlawful for having to have known that the patient can possibly fall and incur damages.

3. CAUSATION Definition: –Causation exists if it can be proved that it was the physiotherapist’s conduct which led to the unlawful consequence. This element can sometimes be very difficult to prove. –Suppose the following happens: >>>>>

After Vuyo falls, Freddy phones an ambulance. The paramedic fetches Vuyo and rushes him to the nearest hospital. On the way to the hospital, Susan runs a red traffic light and crashes into the ambulance. Vuyo was not properly belted in the ambulance by the driver, and with the impact he flies through the back of the ambulance, breaks his neck and dies on the scene. Who will now be liable for Vuyo’s death? –Freddy? –Ambulance driver? –Susan?

Our courts have formulated two questions that need to be answered to solve situations like this: 1.Was the defendant’s actions one in a series of events which led to an unlawful result (factual causation) 2.Was there a sufficiently close connection between the defendant’s conduct and the unlawful result to establish liability (legal causation)

Only if both questions are answered positively can we say that causation is proven. In our original example: –Freddy’s conduct was one in a series of events that led to Vuyo’s injuries, and is also sufficiently close connected. (in the 2 nd example Freddy cannot be held liable for Vuyo’s death, as legal causation cannot be proved)

4.FAULT Fault is divided into: –Negligence, and –Intention.

NEGLIGENCEINTENTION The failure to make proper use of mind and attentiveness State of mind of an accountable person to want to perform an unlawful act with the knowledge that it is unlawful Objective test – called the reasonable person test. Did the person act differently that the reasonable man would have done in the same situation. If the answer is yes then the person is negligent. The objective test for health care workers is not the ‘reasonable person’, but the ‘reasonable physiotherapist test’ because of the degree of skill required. Subjective test – what went on in the mind of the person

The “reasonable physiotherapist” test: –Looks at the following 3 questions: Should the physio have reasonably foreseen the possibility of damage occurring? Should he/she have reasonably guarded against the possibility? Did he/she fail to take steps which he/she should reasonably have taken to guard against the damage? In our example, Freddy was negligent.

5.DAMAGES Before a claim against a physiotherapist can succeed, the patient or client must prove that he/she suffered damages or injury. If no damage is proved, then the physiotherapist cannot be held liable. In our example: –Vuyo suffered injuries, and damages in the form of additional medical expenses.

6.ACCOUNTABILITY Definition: –A person is accountable if he/she possesses the ability to distinguish between right and wrong AND, if so able, refrains from doing what is wrong. Usually factors like mental illness, intoxication, youthfulness or severe emotional distress will negate accountability In our example: –We can assume that Freddy was accountable

RECAP:(Chapter 3) Study the different types of liability Study the 6 elements of liability Explain / define each of the 6 elements Set of facts: apply all the elements and establish whether the person can be held liable.

CHAPTER 4 THE RIGHT TO PRIVACY

PROTECTION OF THE RIGHT TO PRIVACY All patients’ right to privacy is protected by: –section 14 of the Constitution of the RSA –section 14 of the National Health Act 61/2003 –Common law

EXAMPLES OF VIOLATION OF PRIVACY Performing a physical examination without consent of the patient Performing a more thorough examination than what was consented to Indecent exposure of a patient’s body The giving of a medical certificate to a person who is not the patient

EXAMPLES OF WHERE PATIENTS’ RIGHT TO PRIVACY WAS VIOLATED IN OUR CASE LAW:

EXAMPLES OF VIOLATION IN PRACTICE Van Vuuren N.O. v Kruger and Another The patient’s doctor told the patients dentist and another doctor that the patient had AIDS. The patient sued the doctor but the court said that the information could be given out as the other two doctors were also treating the patient and therefore had an interest in the information. On appeal however the court said that the doctor should first have asked the patient if he could inform the other two medical practitioners before he took such a step. An amount of R5 000 was awarded to the deceased estate of the patient.

De May v Roberts A doctor allowed his friend, who was not a doctor, to be present at a birth. The court found that this was a violation of privacy. The woman succeeded in her claim concerning embarrassment and humiliation.

Kitson v Playfair The doctor examined a family member and found signs of a recent miscarriage. He knew that the patients husband had been overseas for some months and told his wife and family of her alleged adultery. This was a violation of her right to privacy, and the patient succeeded in her claim on the basis of breach of confidentiality.

Simonsen v Swenson The doctor informed a hotel owner that one of his guests (the doctor’s patient) had a highly infectious disease. The court found that this was a breach of the patient’s privacy, HOWEVER it was held that the protection of the public was more important than the patient’s right to privacy.

Berry v Moench A psychiatrist advised a girl to stay away from one of his patients, who was a psychopath. The court however held that the girls wellbeing was more important than the patients right to privacy

DEFENSES: Possible defenses against violation of privacy: (a)Consent (b)Disclosure for public interest (c)Privileged information (d)Necessity to protect an endangered third party (e)Court order (f)Statutory obligation (g)Self-defense

RECAP:(Chapter 4) Identify situations of violation of privacy Study the examples of violation of privacy Explain the importance of the given court cases Name and discuss the possible defenses against ‘n charge of violation of privacy