MRTY3122 Legal Principles for Radiographers

OBJECTIVES

  • Basic legal concepts

  • Legal obligations

  • Applying the law in practice

  • Key Case law

  • Take home messages

QUESTION

  • What is the risk of an employee being exposed to a complaint, legal proceedings, workplace conflict, or disciplinary action?

REFLECT / PAUSE

  • Prompt: What do you want to get out of this lecture?

MORALITY, ETHICS & THE LAW

  • Morality: Principles concerning the distinction between right and wrong or good and bad behaviour; the field of moral science – codes of moral behaviour.

  • Ethics: A system of rules that a particular country or community follows; penalties may apply if you break the rules.

  • The Law: System of rules that govern a society and may involve penalties for breaches.

CODE OF CONDUCT PRINCIPLES

  • Principle 1: Put patients first – Safe, effective and collaborative practice; patient-centred; evidence-informed; best possible patient outcomes.

  • Principle 2: Aboriginal and Torres Strait Islander health and cultural safety – Foster open, honest, culturally safe professional relationships; address specific needs of Aboriginal and Torres Strait Islander Peoples.

  • Principle 3: Respectful and culturally safe practice – Practitioners’ own culture, values, attitudes, assumptions and beliefs can influence interactions; communicate respectfully; uphold privacy and confidentiality (including online communications).

  • Principle 4: Working with patients – Build relationships on respect, trust and effective communication; enable patient understanding and participation in care; maintain professional relationships.

  • Principle 5: Working with other practitioners – Good relationships with colleagues strengthen care; practice free of discrimination, bullying and harassment.

  • Principle 6: Working within the healthcare system – Contribute to system effectiveness and efficiency; use resources wisely.

  • Principle 7: Minimising risk to patients – Put patient safety first; maintain professional capability via ongoing development; apply clinical governance, risk minimisation and management.

  • Principle 8: Professional behaviour – Maintain a standard of professional behaviour that earns community trust and respect; practice ethically and honestly.

  • Principle 9: Maintaining practitioner health and wellbeing – Maintain work–life balance; look after health and wellbeing.

  • Principle 10: Teaching, supervising and assessing – Support teaching, supervising and mentoring to develop the health workforce.

  • Principle 11: Ethical research – Recognise the vital role of ethical and evidence-based research; conduct research ethically and support participants' decision-making.

TRUE/FALSE QUIZ

  • 10 QUIZ TIME – true or false?

LABOUR LAW – AUSTRALIAN COURT HIERARCHY

  • High Court of Australia – constitutional jurisdiction; jurisdiction pursuant to Commonwealth legislation; final appellate jurisdiction.

  • Family Court of Australia – jurisdiction pursuant to Family Law Act 1975 (Cth).

  • Federal Court of Australia – jurisdiction pursuant to Commonwealth legislation.

  • State Supreme Court – hears appeals from inferior courts and tribunals; civil and criminal jurisdiction.

  • Federal Circuit Court – jurisdiction pursuant to Commonwealth legislation (less complex).

  • District Court (or County Court) – civil jurisdiction up to $750,000 in NSW; criminal jurisdiction (limited).

  • Local Court (or Magistrates Court) – civil jurisdiction up to $100,000 in NSW; criminal jurisdiction (limited).

COURT & TRIBUNAL ENTITIES

  • Discrimination matters; Commission – unfair dismissal/ dispute/ victimisation; Workers Compensation Tribunal; NSW Civil and Administrative Tribunal (NCAT).

  • NSW Anti-Discrimination Board; Fair Work Commission; Australian Human Rights Commission; NSW Industrial Relations Commission (IRC).

COMPLAINTS

  • Possible complainant perspectives: Patient, Patients’ family, Another employee, Anonymous, Public, Health organisations, etc.

BALANCE OF PROBABILITIES

  • Criminal burden of proof: guilty beyond reasonable doubt.

  • Civil test: balance of probabilities.

  • Briginshaw v Briginshaw (Briginshaw): the strength of evidence required to establish a fact can rise with seriousness of the allegation or consequences.

  • Mathematical notion (for clarity): Civil standard can be viewed as P( ext{fact true}) > frac{1}{2}. Criminal standard is traditionally viewed as requiring proof beyond reasonable doubt, a far higher threshold.

STANDING BREAKS IN LECTURES

  • Research note: Standing breaks in lectures improve university students’ self-perceived physical, mental and cognitive condition.

  • Source: April 2021, International Journal of Environmental Research and Public Health (IJERPH) 18(8):4204; DOI: 10.3390/ijerph18084204.

AFTER HOURS CONDUCT

  • The out-of-hours conduct must have a relevant connection to the employment relationship.

  • Rose v Telstra principles:

    • The conduct is likely to cause serious damage to the relationship between employee and employer; or

    • The conduct damages the employer's interests; or

    • The conduct is incompatible with the employee's duty as an employee.

  • Case example: Rose v Telstra Corporation Limited, Print Q9292 (AIRC, Ross VP, 4 December 1998) and John Keron v Westpac Banking Corporation [2022].

FIGHTING / ASSAULT

  • Generally, in the absence of extenuating circumstances, termination for fighting is possible; extenuating circumstances include:

    • Circumstances of the fight (e.g., provocation or self-defense);

    • Length of service and work record;

    • Whether the employee held a supervisory position.

  • Case study: Sheridan v Health Secretary in respect of the Illawarra Shoalhaven Local Health District [2021].

SOCIAL MEDIA CASE STUDY: FACEBOOK

  • O'Keefe v Williams Muir's Pty Ltd T/A Troy Williams The Good Guys [2011] FWA 5311.

  • Employee made negative and threatening comments about a colleague on Facebook; court found the threat to be serious misconduct and not tolerable in the workplace.

TRANSMISSION OF PORNOGRAPHIC MATERIAL

  • Flanagan v Thales Australia Ltd t/a Thales Australia [2012] FWA 6291: Employees accessed pornographic material via work emails in breach of company policy; dismissal upheld.

  • Lane v Northern Sydney Central Coast Area Health Service [2006] NSWIRComm 176: Case context related to policy breach.

FOLLOWING A LAWFUL & REASONABLE DIRECTIONS

  • Grant v BHP Coal Pty Ltd [2014] FWCFB 3027: Employee on extended sick leave; failed to attend a medical appointment and refused to participate in disciplinary investigation; dismissal occurred for failing to follow lawful and reasonable directions.

  • Take home message: follow a reasonable and lawful direction.

ACCESSING ELECTRONIC MEDICAL RECORDS (EMR) WITHOUT AUTHORITY

  • Valid ground for termination when access is for non-clinical reason; only access records for a valid clinical reason.

A JOKE ISN'T A JOKE

  • Inappropriate jokes, especially those that cross into sexual harassment or target race, gender identity, or sexual orientation, are unacceptable in the workplace.

  • Case: Green v State of Queensland, Brooker and Keating [2017] QCAT 008.

ILLEGITIMATE 'SICKIES'

  • Anderson v Crown Melbourne Ltd [2008] FMCA 152: Employee provided medical certificate and took sick leave but was at a football game via Facebook; employer questioned certificate; outcome leaned toward questioning the accuracy of the certificate; indicates justification to scrutinise medical certificates when suspicions arise.

DUTY, BREACH, CAUSATION, DAMAGE (NEGLIGENCE)

  • DUTY: Defendant owed a duty to the plaintiff; legal duty to take reasonable care; scope depends on relationship; care not to harm through actions or inactions.

  • BREACH: Need to show breach of duty; what would a reasonable person have done? Needs to establish: substantial risk of harm; risk was foreseeable; a reasonable person would have taken precautions against the risk.

  • CAUSATION: Plaintiff must show damage or injury resulted from the breach of duty.

  • DAMAGES: If proven, plaintiff may receive compensation for injury or harm; damages cover economic and non-economic losses. Economic loss includes lost wages, medical expenses, and necessary domestic services; non-economic loss includes pain and suffering. Damages are case-specific.

  • Formula reference (conceptual): ext{Negligence} = D \,\land\, B \,\land\, C \,\land\, M where D = Duty, B = Breach, C = Causation, M = Damages.

VICARIOUS LIABILITY

  • Definition: Employers can be held vicariously liable for negligence and other actions that occur within the scope of employment.

  • Test: whether the employee’s conduct is connected to what the employee was employed to do; whether their role placed them in a position of power, trust, authority, and potential to affect others.

  • When it applies: errors or mistakes; not checking pregnancy; signing forms; lack of consent (examples of issues).

  • Case: CCIG Investments Pty Ltd v Schokman [2023] HCA 21 (Schokman).

PROFESSIONAL INDEMNITY INSURANCE

  • Benefits:

    • Critical safety net;

    • Protection against claims of negligence or breach arising from services provided;

    • Helps cover legal costs and any awarded compensation if at fault.

HEALTH CARE COMPLAINTS COMMISSION (HCCC)

  • Complaint options:

    • Take no action;

    • Investigate (balance of probabilities standard);

    • Refer to relevant health professional Council/National Board;

    • Refer to other appropriate body (e.g., NSW police);

    • Refer to Commission’s Resolution Service;

    • Make recommendations or comments to provider/health organisation;

    • Refer to relevant public/private health organisation for local resolution.

PUBLIC WARNINGS UNDER S94A OF THE HCCC ACT

  • August 2021: Paramedic/ambulance services case (Mr John Robert Cook) in Queanbeyan – Palerang area; Interim Prohibition Order imposed; ongoing investigation.

PUBLIC WARNINGS UNDER S94A OF HCCC ACT – NOVEMBER 2020

  • Ultrasound services by Ms Li Shen and Medsound, Hornsby; period Jan 2017 to Nov 2020; Interim Prohibition Order; recommendations to patients to protect themselves.

HCCC V SARGEANT [2019] NSWCATOD 140

  • Finding: the radiologist engaged in professional misconduct and would have had registration cancelled; 12-month disqualification if still registered.

HCCC PROSECUTION OF SAMIR ISHAK, SONOGRAPHER (JUNE ’19)

  • Prohibition Order: Ishak breached the Code of Conduct; posed risk to health or safety of public; permanent prohibition order; Ishak permanently prohibited from providing health services.

RECOMMENDATIONS

  1. Consent, consent, consent.

  2. Public Liability Insurance.

  3. Read all policies and procedures.

  4. Understand Codes of Conduct.

  5. Consider joining a Union.

  6. Keep good file notes.

  7. Comply with compulsory training requirements.

  8. Invest in yourself (self-reflection, mental health, etc.).

QUESTIONS / COMMENTS / REFLECTIONS

  • Footer slide inviting questions, comments, and reflections.

KEY TERMINOLOGY & CONNECTED CONCEPTS

  • Duty of care, breach, causation, damages (Negligence) – essential components to evaluate civil claims against healthcare professionals.

  • Briginshaw standard – evidentiary strength increases with gravity of consequence.

  • Vicarious liability – employer liability for employee actions within the course of employment.

  • Professional indemnity – insurance to cover claims arising from professional services.

  • HCCC – statutory body handling health service-related complaints, investigations, and public warnings.

  • Balance of probabilities – civil standard of proof; >50% likelihood.

  • Beyond reasonable doubt – criminal standard of proof; much higher threshold.

  • Record-keeping & consent – critical in clinical practice and for defence in disputes.

  • Social media – potential for workplace misconduct; online conduct can affect employment.

  • Following lawful directions – non-compliance can justify discipline or termination.

  • Access controls to EMR – patient safety and privacy implications; improper access can be grounds for termination.

  • Cultural safety – importance of respecting Indigenous health perspectives and cultural contexts in practice.

SUMMARY TAKEAWAYS

  • The core framework includes ethical conduct, legal obligations, professional standards, and practical consequences of non-compliance.

  • Real-world cases illustrate the application of these principles across harassment, privacy, negligence, and employment decisions.

  • Proactive measures (policy understanding, training, documentation, and ethical practice) reduce risk of complaints and disciplinary actions.