Chcmhs 001 question 4.1 legal and ethical considerations PDF

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CHCMHS001: Work with people with mental health issues Question 4.1 Outline the legal and ethical considerations (international, national, state/territory and local) for mental health work, and how these are applied in organisations and individual practice for the following issues. Children in the workplace When dealing directly with children a worker must understand the legal and ethical concerns, and their limitations, and patient/client boundaries. These include:  The requirements for consent  Implementation of the UN Convention  Changing your mannerism and the way  The rights of the child you speak to be relevant to the child to ensure  The child's right to privacy trust and comfort  Mandatory reporting  Responsibilities of parents and guardians No underage children must be hired as service worker in the organisation, or where necessary, their type of work and work hours must be limited (Underage requirement varies across states/territories). Organisations must ensure that children, including young clients who are visiting the workplace are safe in the premises. This includes WHS plans to be in place to consider:  any equipment area,  materials that can harm children  check situations which may pose health  inspect work activities which may not be risks for children appropriate for children Workplaces where children may be present but are not necessarily the primary recipients of care or support, For Example, in an aged care facility where family members including children would frequently visit. So, for a worker there still may be a duty of care and ethical consideration in this context. Codes of practice A code of practice provides practical guidance for people who have work health and safety duties. These codes give guidance on:  how to achieve the standards required under the Act  effective ways to identify and manage risks Support workers must monitor and evaluate their workplace environment, including their own work practices to ensure safety. Support workers must ensure they keep the workplace safe and free from hazards by following the guidelines in the codes of practice, some of these include:  preventing falls  first aid in the workplace  safety design of structures in the  hazardous manual tasks  managing risks workplace A code of practice applies to anyone who has a duty of care in the circumstances described in the code. In most cases, following an approved code of practice would achieve compliance with the health and safety duties in the act, in relation to the subject matter of the code. Like regulations, codes of practice deal with particular issues and do not cover all hazards or risks which may arise. The health and safety duties require duty holders to consider all risks associated with work, not only those which regulations and codes of practice exist. From 1 July 2018 persons conducting a business or undertaking are required to comply with an approved code of practice under the Work Health and Safety Act 2011. Alternatively, duty holders can follow another method, such as technical or an industry standard, to manage hazards and risks, as long as it provides an equivalent or higher standard of work health and safety to the standards required in the code. Discrimination Equal opportunity legislation makes it unlawful to treat anyone less favourably on the basis of particular attributes or personal characteristics (such as gender, race, disability, or age) in certain areas of public life (such as accommodation, education, employment or the provision of goods or services). Not all acts of unfair or less favourable treatment are unlawful. Discrimination is not unlawful unless it occurs on the basis Certificate IV in Alcohol and Other Drugs CHCMHS001: Work with people with mental health issues (200048718) Rebecca Jones

of one or more of the attributes set out in legislation. Prohibited grounds of discrimination under equal opportunity legislation:  Political belief of activity  Age  Pregnancy  Breastfeeding  Race  Gender identity  Religious belief or activity  Impairment  Gender  Industrial activity  Sexual orientation  Lawful sexual activity  Personal association with a person who is  Marital status identified by reference to any of the above  Parental status or status as a carer attributes  Physical features Many people are subject to discriminatory treatment on the basis of their social status, in particular their status as a homeless person, an unemployed person, or a person in receipt of social security payments. Dignity of risk Dignity of risk is defined in this context as self-determination or taking responsibility for one’s selfmanagement and autonomy in one’s life choices and the willingness to take informed ad planned risks in order to grow. It allows the individual to have control over their life. It will be necessary to encourage organisations and professionals who work with people with mental illness the opportunity to make their own decisions. This can be done by providing information ad choices and allowing the individual the chance to determine how to proceed. Most individuals are capable of making their own decisions and choices. These can be about simple day to day matters and/or complex life decisions. Individuals should be given the opportunities wherever possible and practicable, to patriciate in the decision making which affects their health and wellbeing. Individuals have the right to take some risks in their life. This means that organisations and professionals must allow the individual the freedom to make their own decisions and to accept levels of risk that will not result in permanent harm or fatal injury, will not harm the environment or will not harm others. This is the case even when an organisation or professional does not agree with those decisions. Taking responsibility for making our own decisions is one of the major areas of risk that we face in our lives, so, when we talk about individuals taking risks, we also mean the risk of choice and decision making. All decisions, big and small, are important. The right to make decisions and choices determines, to a large extent, our quality of life. We all make bad decisions or decisions that we regret. Mistakes provide learning opportunities. However, individuals with a mental illness are sometimes not given the opportunity to make their own mistake, or the support to recover from bad decisions. When encouraging an individual’s independence it might be necessary, in some instance, to stand back and allow them to make a decision that others might not consider is the right one, yet it is their choice and they have the right to make it provided it does not threaten their safety or the safety of others. Individuals should be encouraged to assert their right to dignity or risk when seeking the services of a mental health professional such as a psychiatrist or psychologist. When a mental health professional insists on compliance the result is too often that the person quietly discontinues medications and/or withdraws from activities designed to assist recovery. Duty of care All mental health workers need to be able to accurately apply a duty of care and vicarious liability to professional practice to ensure that people receive safe and conscientious care and that the organisations policies, procedures and reputation are upheld. Under common law a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care and do not perform any acts that could foreseeably harm others, they must also ensure that clients are not harmed as a result of inaction or lack of appropriate intervention. Mental health workers owe a duty of care in any circumstance where it is reasonably foreseeable that a person in their care might suffer some sort of harm or loss because of something they do or might not do. This means that a person acting in a caring role has a legal obligation to act in ways that protect the client. Certificate IV in Alcohol and Other Drugs CHCMHS001: Work with people with mental health issues (200048718) Rebecca Jones

It implies a legal obligation to have thought or regard for those who might be affected by ones acts or omissions. Workers are expected to choose the most efficient means of controlling risk of harm, to clients, work colleagues and other stakeholders, and to demonstrate that all that is practicable and reasonable is done to prevent harm. They must further be able to demonstrate that harm will not or has not occurred as a result of omission or failure to act. If mental health workers do not fulfil their duty of care they can be deemed, in terms of legal action, penalties and fines or civil litigation, negligent. If a worker or organisation does not provide a reasonable standard of care and the client suffers harm or loss as a result, then they are likely to be found negligent. Further, a person or an organisation might be deemed negligent if they failed to act or failed to plan to reduce risk in foreseeable circumstances. Negligence is considered to occur when someone who owes a duty if care fails to act according to a reasonable standard of care and causes or allows harm or injury. In fulfilling duty of care obligations, therefore, community service workers must know what their duty of care entails and must take steps to provide a reasonable standard of care and to ensure that through their work practice arm to others does not occur. Duty of care applies on in areas where the other person relies upon another. A doctor owes a patient a duty of care to make sure they give them proper medical attention. They do not owe them a duty of care in other areas, like taking care of their finances. In considering duty of care and their work practice workers should take into account:  The likelihood and severity of harm or  The different degrees to which different injury if no action is taken people rely on the service provided and  Whether the person ha a disability or the relationship between the service and medical illness or a condition that affects its clients the risks associated with particular  The degree to which persons are able to courses of action understand risks and are able to accept  How legal and/or human rights will be responsibility for that risk themselves upheld and protected  The likelihood and severity of harm or injury if a particular course of action is chosen To support duty of care requirements: participate in and achieve valued roles in  Clients seeking a service must have access the community to the service, based on relative need and  Service providing organisations should resources available have in place transparent and know  Individual needs and personal goals of compliant and dispute management clients should be met with available procedures that safeguard complaints resources from reprisals  Clients where possible, should participate  Service providing organisations should in decision making, choice of activities and have in place effective management events in daily life  Persons rights to privacy, dignity and policies, systems and practices confidentiality, in all aspects of their lives,  Ethical and commonly accepted values should be seen to be respected and should be upheld by the organisation and upheld its employees  Clients should be supported and included  Appropriate and timely action should be in community life taken for the protection of legal, human  Clients should be given opportunities to rights and freedom from abuse or neglect develop skills that allow them to  Organisations and their employees should  Workers should be recruited, selected and take appropriate action to prevent or trained to ensure that they have the respond to allegations of abuse or neglect relevant skills, values, knowledge and competencies to support service delivery Certificate IV in Alcohol and Other Drugs CHCMHS001: Work with people with mental health issues (200048718) Rebecca Jones

support the tenets of duty of care and All workers should understand the that controls are in place and followed so concept of duty of care that harm to clients is prevented  Workers and the organisation should ensure that actions, policies and practices Human rights Human rights recognise the inherent value of each person, regardless of background, where we live, what we look like, what we think or what we believe. They are based on principles of dignity, equality and mutual respect, which are shared across cultures, religions and philosophies. They are about being treated fairly, treating others fairly and having the ability to make genuine choices in our daily lives. Respect for human rights is the cornerstone of strong communities in which everyone can make a contribution and feel included. The Universal Declaration of Human Rights, adopted by the United Nations on 10 December 1948, sets out the basic rights and freedoms that apply to all people. Drafted in the aftermath of World War Two, it has become a foundation document that has inspired many legally binding international human rights laws. The Australian Government has agreed to uphold and respect many of these human rights treaties including the:  International Covenant on Civil and Political Rights  International Covenant on Economic, Social and Cultural Rights  Convention on the Elimination of All Forms of Racial Discrimination  Convention on the Elimination of All Forms of Discrimination against Women  Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment  Convention on the Rights of the Child  Convention on the Rights of Persons with Disabilities. The Commission has a responsibility to monitor Australia’s performance in meeting its international human rights commitments. We provide advice and recommendations so that these standards are reflected in our national laws, as well as policies and programs developed by government. Informed consent Consent obtained freely, without coercion, threats or improper inducements, after questions asked by the consumer have been answered, after appropriate disclosure to the client, adequate and understandable information in a form and language demonstratabley understood by the client. Such answers and disclosures must be sufficient to enable the consumer to make a fully informed decision based on all relevant factors including the nature of treatment involved, the range of other options and the possible outcomes and implications, risks and benefits for the consumer and others. In the context of mental health, this means that the client provides permission for a specific treatment to occur based on their understanding of the nature of the procedure, the risks involved, the consequences of withholding permission and their knowledge of available alternative treatments. Informed consent means that a person:  is provided with appropriate and adequate information  is capable of understanding the nature of the information and the consequences of a decision made in relation to this information  can freely make decisions without unfair pressure or influence from others. An individual cannot give valid consent if they lack the capacity to make an informed decision. However, a person with a mental illness might experience changes in both their mental state and their needs, and their capacity to provide informed consent may fluctuate. In obtaining informed consent, the service provider should consider the following:  what the consent applies to should also be  information might need to be provided in made very clear - what information will be different ways depending on the consumer's needs and mental state at the shared, with whom and how time 

Certificate IV in Alcohol and Other Drugs CHCMHS001: Work with people with mental health issues (200048718) Rebecca Jones

 consumers have the right to change or the need to avoid assumptions that retract their consent. consent provides a blanket approval for sharing information Consideration should also be given to the consumer having the opportunity to nominate someone they trust to make decisions on their behalf if they are unable to give informed consent. Evidence that this criterion is met could include:  demonstrating that information about informed consent is provided in different ways depending on the consumer's needs and mental state at the time  documentation to demonstrate that consumers are informed about what information will be shared, with whom and how and that they have the right to change or retract their consent  evidence that consumers are informed about and provided with opportunities to make advance directives in relation to the services they receive  evidence that the service provider's intake or initial assessment process includes procedures to identify consumers who are subject to relevant orders or arrangements such as community treatment orders or adult guardianship arrangements 

Mandatory reporting Mandatory reporting is a term used to describe the legislative requirement which specifies who is required by law to report suspected cases of child abuse and neglect to government authorities. Parliaments in all Australian states and territories have enacted mandatory reporting laws of some description. However, the laws are not all the same across all jurisdictions. The main differences concern who has to report and what types of abuse and neglect have to be reported. There are also differences, such as the ‘state of mind’ that activates the reporting duty, (i.e. having a concern, suspicion or belief on reasonable grounds) and the destination of the report. Who is mandated to report - The legislation generally contains lists of particular occupations that are mandated to report. The groups of people mandated to notify cases of suspected child abuse and neglect range from person in a limited number of occupations (QLD doctors, departmental officers and employees of licenced residential care services) to a more extensive list (VIC and W.A), to a very extensive list (ACT, NSW, SA, TAS), through to every adult (NT; and VIC for sexual offences). The occupations most commonly named as mandated reporters are those who deal frequently with children in the course of their work: teachers, doctors, nurses and police. What types of abuse are mandated reporters required to report - In addition to differences describing who is a mandated reporter across jurisdictions, there are differences in the types of abuse and neglect that must be reported. In some jurisdictions it is mandatory to report suspicions of each of the four classical types of abuse and neglect abuse (i.e., physical abuse, sexual abuse, emotional abuse and neglect). In other jurisdictions it is mandatory to report only some of the abuse types (e.g., Vic., ACT). Some jurisdictions also require reports of exposure of children to domestic violence (e.g., NSW, Tas.). It is important to note that in most jurisdictions the legislation generally specifies that except for sexual abuse (where all suspicions must be reported), it is only cases of significant abuse and neglect that must be reported (see Table 1 for jurisdictions that specify the extent of harm). Reflecting the original intention of the laws, the duty does not apply to any instance of "abuse" or "neglect" but only to cases that are of sufficiently significant harm to the child's health or wellbeing to warrant intervention or service provision. However, reflecting the qualitative differences presented by sexual abuse as opposed to other forms of abuse and neglect, five jurisdictions apply the reporting duty to all suspected cases of sexual abuse without requiring the reporter to exercise any discretion about the extent of harm that may have been caused or that may be likely (ACT, NT, SA, Tas., WA). In the other three jurisdictions (NSW, Qld, Vic.), the practical application of the duty to report sexual abuse would still result in reports of all suspected sexual abuse being required, as sexual abuse should always create a suspicion of significant harm. Suspicions of less severe child abuse and neglect may be referred to child and family welfare agencies, especially where jurisdictions have made more extensive provision for this (e.g., Vic., NSW, Tas.). It is important to note that the duty to report al...