TOPIC 7 - BIOETHICAL PRINCIPLES AND CONSTITUTIONAL LIMITATIONS Autonomy - Right to choose to have/not to have health care treatments COMPETENCE

TO CONSENT TO MEDICAL TREATMENT (DEVEREUX) - Kantian autonomy - Idea of will to decide on particular course of action; morally good only when reason for acting not only to act in accordance with duty, but for sake of duty - Can only be moral if you can adopt a maxim for an action - Self-governance and making ones own choices in accordance with universal moral principles - Contrast with heteronomy i.e. rule of self by others (internal or external) - Millean autonomy - Liberty - focus on thoughts/actions rather than moral autonomy; restrictions upon freedom of action to be tolerated only where limitations were to prevent one persons freedom impinging on anothers - Autonomy = having true character - Freedom of actions/will; respect of idea that there are separate persons - Essential to health that people have capacity/opportunity for choice in respect of medical intervention - Benecience - Countervailing principle: moral duty to act with best medical result in mind. Optimal course of treatment with best medical result - Hippocrates - Apply diatetic measures to benet of sick according to ability/judgment; keep them from harm/injustice - Do away with suffering of sick, lessen violence of diseases, refuse to treat those who are overmastered by disease where medicine powerless - Moral ends of medicine; harm and good - Gregory - Art of preserving health, prolonging life, curing diseases - Concept of sympathy, pity and terror, virtues and obligations; moral view of medicine that generates instances of benecience - Beauchamp + McCulloch (modern formulation) - List of goods to be striven for and harms to be avoided - Autonomy and benecience coexisting - Patients interest in autonomy is paramount

Constitutional limitations on healthcare COMMONWEALTH AND STATE POWERS IN HEALTH - CONSTITUTIONAL DIAGNOSIS (WHEELWRIGHT) - Mix of Commonwealth, State, local, private-sector involvement - High quality and low quality programs exist, so constitution clearly isnt the major problem - Affected by federalism and philosophies of governments of different political persuasions General constitutional principles - Some powers leading to federal power over health, e.g. quarantine (ix), insurance (xiv), pensions (xxiii) - Pharmaceutical Benets case: pharmaceutical benets scheme was unconstitutional. They tried to justify it under s 81 (appropriations for Commonwealth purposes). Distinguished from American Constitution; no power to make legislation for welfare of people. Dixon J: not relevant to power conferred upon Federal Parliament; completely invalid. Starke J agreed. Williams J thought that it did appropriate money but not for a purpose of the Commonwealth. Subsequent constitutional amendment - s 51(xxiiiA) FEDERAL COUNCIL OF BRITISH MEDICAL ASSOCIATION IN AUSTRALIA AND OTHERS v CTH AND OTHERS New Pharmaceutical Benets Act: more provision to public of appliances; inclusion of provision that medical practitioner could not provide medicines/appliances specied in formulary/addendum except by using Commonwealth form. Penalty for non-compliance. Alteration of Constitution, giving power to legislate with respect to allowances/pensions, unemployment, pharmaceutical/hospital benets, medical/dental services (s 51 xxiiiA) Williams J: Purpose of Constitutional alteration to was to empower Parliament to spend money on a wider range of social services. Medical/dental subject to no civil conscription qualier; prohibition in same character as ss 92, 116 - so invalidates all legislation compelling medical/dental providers to provide any form of medical/dental services. Compulsory services rendered to Commonwealth. Submission that this could happen narrows the effect of the words any form of in the expression of parenthesis. Webb J: Civil conscription is practical compulsion. Forms/prescription made compulsory by a ne or loss of practice, then its a form of civil conscription of doctors as doctors. Makes lawful continuation of doctor-patient relationship dependent on condition. GENERAL PRACTITIONERS SOCIETY OF AUSTRALIA v CTH Legislation placed conditions on entitlement of medical practitioner to claim benets in respect of pathology services performed. Gibbs J: Two arguments - requires medical practitioners to perform medical services, and prohibits them from carrying on practice in a different way. Obviously you dont have to become an approved pathologist, but its kind of hard to think that patients would come to you if you cant get medical benets. Have to consider effect of law in economic/other circumstances. Different idea of civil conscription: shouldnt be given enlarged meaning which its words dont bear - compulsion to perform, not regulation of manner of performance. No intention to prevent Parliament from making laws of that kind. Dont go beyond regulating manner in which some incidents of those practices are carried out. Doesnt constitute civil conscription so it isnt bad. Consideration of whether legislation regulating nursing homes infringes on it was considered in Alexandra Private Geriatric Hospital v Cth.

What can the Commonwealth legislate over? - National Health Act: provision of health services, conditions for receipt of benets for health care, regulates establishment/business of organisations, provides for/regulates payments of benets for pharmaceuticals - Health Insurance Act provides for payment of medical and hospital benets - Medicare - Pursuant to ss 51(xxiiiA) and 96, introduced Medicare - Each eligible person (resident) may claim 85% of scheduled fee outside hospital or 75% in hospital. Assignment of benet number, etc. - Benets not payable where for assessing insurance/society/superannuation; where entitled to compensation/damages elsewhere; where payment made already; where vaccinated in mass immunisation program; where medical expenses paid by another; where screening for disease except where otherwise provided - Funded through medicare levy - Private health insurance - Uniform premium; coverage, etc. - Perceived crisis & responses (Devereux) - Falling participation rates due to rising premiums and out of pocket expenses; proposal of reform for lower premiums, and reform of payment offers for negotiation and cost control - Aims of requiring agreements between health insurance and hospitals etc. allows competition with improved efciency, linking of hospital funding to quality assurance and accreditation, and reduction of restrictions on products offered - Casemix program - regulates public funding by diagnosis-related groups - Independent Private Health Insurance Complaints Commissioner