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Legal and ethical issues

Introduction

Host organisations work within particular legal contexts. In the previous section, we discussed occupational health and safety, which is one legal framework that is intended to influence health and safety whilst at work. Many other legislative frameworks govern provision of services and products.

Whilst all organisations must take account of particular legal frameworks, many staff working within these organisations act in accordance with conventions and professional ethics that provide guidance for professional and organisational behaviour.

Legislative frameworks

Law refers to the substance and process of statutes and established rules and regulations. Every worker needs to have some basic understanding of the statutes and established rules and regulations that determine how services are provided and products are made.

There are two different types of laws. Some are made by government and in Australia that includes laws from the Commonwealth, State and Local Governments. Governments are not able to make laws to suit every occasion or set of problems. Therefore there are situations in which judges determine laws. These judge-made laws set the legal precedents for future actions. The recent decision re Gutnick is an interesting example in the area of internet publication. Whatever the law, the statutes and precedents provide boundaries and guidelines to determine how workers and organisations must act.

It is not possible to detail the legislation that applies to every work placement. Legislation is specific to each industry, profession and occupational group. In the activity associated with this module, you have been asked to investigate legislation relating to your particular practicum organisations. In the section that follows, we have attempted to specify some universal social legislation that applies to many organisations. This includes human rights, in particular the anti-discriminatory legislation, privacy legislation and duties with respect to child protection.

Human rights and equal opportunity

The Human Rights and Equal Opportunity Commission administers several pieces of legislation that include disability rights, racial discrimination, sex discrimination and other human rights. The Commission has the right to investigate discrimination on the grounds of race, colour or ethnic origin, racial vilification, sex and sexual harassment, marital status, pregnancy or disability. This legislation is important for you as students and workers as it provides protection of your rights. You are now referred to the Human Rights and Equal Opportunity web site for a description of functions, powers, explanations, legislation and information for employers.

Privacy

The Office of the Federal Privacy Commissioner administers Federal Privacy Law. This law covers private sector business, health care providers, and Commonwealth and ACT government agencies. In addition, some state governments have their own privacy legislation. The Federal Privacy Act contains eleven Information Privacy Principles that apply to Commonwealth and ACT government agencies, and the National Privacy Principles that apply to parts of the private sector and all health providers. This legislation is of particular importance in placements because it prescribes what practitioners, students and organisations must do to respect the privacy of consumers, clients and citizens.

Child protection legislation

Legislation can oblige some workers in certain professions to report suspicions of child abuse. "In 1993 the Victorian Government proposed legislative changes to the Children and Young Persons Act 1989 which would mandate specific professional groups to notify suspected cases of child physical and sexual abuse. Doctors, nurses and police were mandated on 4 November 1993 to report child physical and sexual abuse. Primary and secondary school teachers and principals were mandated on 18 July 1994."
[From Australian Institute of Health and Welfare (AIHW) 2005. Child protection Australia 2003-04. AIHW cat no. CWS 24. Canberra: AIHW (Child Welfare Series no. 36).]

Professionals' legal responsibilities

Many professionals have been taken to court because their professional practice has left their clients, patients or employers suffering some financial, physical or mental loss. These professionals come from a broad range of profesions. They are not limited to doctors, nurses, dentists, architects, lawyers or social workers. The less visual 'malpractice' of misappropriation of intellectual property or breach of commercial confidentiality, particularly in the technological professions, is increasingly leading to court cases. If clients, consumers or employers are successful in their legal cases, professionals may be required to pay damages and may even lose their right to practise. Without going into the way the legal system determines issues of liability, the following key ideas are particularly helpful.

There is an expectation that professional people observe a reasonable standard of care and behaviour. This standard of care or behaviour is that which a professional who works in a particular area could reasonably be expected to have. Students would be expected to know and apply their professional association or discipline standards of practice, and to be supervised by people who are committed to such standards. If a professional departs from acceptable standards, a breach of duties may arise.

What are the standards for your profession? Seek these and list them in your Portfolio.

Ethical issues

The study of ethics is part of many professional programmes. It aims to prevent unethical behaviour and ensure the best quality service to clients. As part of studying ethics, professional programmes draw attention to various codes of ethics that are of particular relevance to their profession or discipline.

Professional ethics are derived from general ethical principles and are a statement of the principles held by an individual or group. They represent a public declaration of one’s commitment and obligation to its rule over one’s conduct. Codes of ethics serve many purposes. As they generally contain the profession’s core values and principles, they are used to guide and regulate professional behaviour. An action is determined to be ethical or unethical according to whether it conforms to these rules, with regulation determined through a peer review process.

There are great variations amongst the professional codes but generally they include several key functions including:

  • Promotion of consumers’ welfare.
  • Maintenance of professional competence.
  • Ensure that consumers are not harmed.
  • Protection of privacy, confidentiality, commerciality, intellectual property.
  • Avoidance of exploitation.
  • Maintenance of the profession’s integrity.

Codes of ethics have a similar structure and contain some or all of the following:

  • A preamble containing such things as aims, mission, purpose.
  • A set of values.
  • Key principles and responsibilities.
  • Guidelines for ethical decision-making.
  • Glossary of terms.
  • By-laws that determine how the professional body will adjudicate complaints about unethical practice against its members.

Although a code of ethics is a set of professional expectations, it may not necessarily assist you to think through the wide range of dilemmas found in practice. It is important for you to think critically about all practice issues and seek advice if stuck, rather than using a set of rules in a prescriptive manner. While your code provides a strong case to act in particular ways, some principles may be rebuttable in certain situations. However, you do need to know your profession’s code of ethics – if you are not familiar with yours, seek out this information and read it before beginning your placement.

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