Kim Atkins

Practical identity and narrative agency

Contributors Acknowledgments 1. Introduction: Practical Identity and Narrative Agency Catriona Mackenzie Part I: Personal Identity and Continuity 2. Staying Alive: Personal Continuation and a Life Worth Having Marya Schechtman 3. Personal Identity: Practical or Metaphysical? Caroline West 4. Narrative Identity and Embodied Continuity Kim Atkins Part II: Practical Identity and Practical Deliberation 5. Personal Identity Management Jan Bransen 6. Imagination, Identity and Self-Transformation Catriona Mackenzie 7. Why Search for Lost Time: Memory, Autonomy, and Practical Reason John Christman Part III: Selfhood and Normative Agency 8. The Way of the Wanton J. David Velleman 9. Losing Ones Self Cheshire Calhoun 10. Normative Agency Jeanette Kennett and Steve Matthews 11. Remorse and Moral Identity Christopher Cordner Part IV: Selfhood, Narrative and Time 12. Shaping a Life: Narrative, Time and Necessity Genevieve Lloyd 13. How to Change the Past Karen Jones

RE ALEX: Narrative Identity and the Case of Gender Dysphoria

In April 2004, the Family Court was called upon to determine whether gender reassignment treatment was in the best interests of a child named Alex. In determining any person’s interests, it is necessary to know who that person is and whose interests are at stake. This is even more difficult where the interest at stake concerns a person’s identity. In order to determine whether gender reassignment was in Alex’s interests, the court was required to determine how the question of gender related to who Alex was. In short, the court had to deploy a theory of identity. This article will argue that the process and the reasoning behind the judgment demonstrate the deployment of a practical and discursive conception of identity (specifically, a narrative self-constitution view), rather than an essentialist view according to which gender identity is regarded as a direct expression of bodily sex. In coming to his judgment, the Chief Justice demonstrated a critical sensitivity and responsivity to the discursive nature and social context of identity by facilitating a dialogical account of Alex’s situation and, ultimately, gender identity.

Ethics and Law for Australian Nurses: Nursing and the legal system

LEARNING OBJECTIVES In this chapter, you will: ➔ Distinguish between the two sources of law in Australia: statutory law and common law ➔ Gain an understanding of the hierarchy of the courts in Australias legal system ➔ Gain an understanding of the difference between criminal and civil law and how each relates to nursing practice ➔ Gain an understanding of the importance for nurses of gaining knowledge of the law and the legal system The Australian legal system is complex. An illustration of its complexity can be seen in the protracted and controversial case of Dr Jayant Patel, a surgeon who had been working at the Bundaberg Base Hospital in Queensland. In 2010, following a commission of inquiry by the Queensland Government, and after being extradited from the United States, an action of criminal negligence was brought against Dr Patel under the Criminal Code 1899 (Qld). Although the legal action was initially successful, and Patel was found guilty on three counts of manslaughter and one count of grievous bodily harm, the case for the prosecution was not straightforward. Section 288 of the Criminal Code 1899 states that: ‘It is the duty of every person who … undertakes to administer surgical … treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act.’ Patel was found to have operated with appropriate skill and care. Jurors, therefore, were required to find that Patels decision to operate showed ‘such a great falling short of the standard to have been expected of a surgeon, and showing such serious disregard for the patients welfare … was so thoroughly reprehensible, involving such grave moral guilt, that it should be treated as a crime deserving of punishment’ (R v Patel [2010] QSC 233 [69]). Patels convictions depended upon an interpretation of section 288 by Justice Byrne: Take a surgeon who performs a minor surgical procedure with consent. During the operation, in circumstances bespeaking criminal negligence, the surgeon lets the knife slip, wounding the patient. The surgeon will have breached the s 288 duty and be guilty of unlawful wounding.

Ethics and Law for Australian Nurses: Witnessing and making mistakes

LEARNING OBJECTIVES In this chapter, you will: Understand the nature of professional self-respect and its connection to trustworthiness Understand the nature of trust and its role in the clinical relationship Understand the factors that lead to clinical errors and incidents Understand some factors that influence nurses’ decisions about reporting errors Understand Open Disclosure policy Apari had been caring for a diabetic man, Jack, whose blood glucose levels had been difficult to regulate. One day they would be high, the next day they would be low. By chance one day Apari saw that a new nurse, Louise, was using the glucometer incorrectly to test Jacks blood glucose. Apari checked Jacks notes and realised that Louise had been recording incorrect blood glucose levels for several days. Just like everyone else, nurses sometimes make mistakes that can result in harm to others. The ANMC Code of Professional Conduct (2008b) makes a number of statements regarding safe conduct – for example: Conduct Statement 1: Nurses practise in a safe and competent manner. Conduct Statement 2: Nurses practise in accordance with the standards of the profession and broader health system. Conduct Statement 3: Nurses practise and conduct themselves in accordance with laws relevant to the profession and practice of nursing. The ANMC Code of Ethics (2008a) also refers to safe conduct: Value Statement 1: Nurses value quality nursing care for all people. Value Statement 6: Nurses value a culture of safety in nursing and health care.

Ethics and Law for Australian Nurses: Patient information, confidentiality and trust

LEARNING OBJECTIVES In this chapter, you will: Understand the concepts of privacy and confidentiality, and be able to differentiate them Understand the nurses legal and moral responsibilities in relation to privacy and confidentiality Understand the legal requirements of mandatory reporting Ross was admitted through emergency services with chest pain and was found to have had a myocardial infarction. He was admitted to the Cardiac Unit and placed on bed rest with cardiac monitoring. On admission, Kate, his nurse, gathered information from him about his condition and lifestyle to help plan his recovery and rehabilitation. When collecting this information, Ross told her that he was married and had three teenage sons. He added that he also had a long-term and loving relationship with Gill and together they had a daughter who was seven years old. His wife did not know about his relationship with Gill or about his daughter, and he asked Kate to promise that this would not be disclosed to her. He said, ‘I know I can trust you with this information.’ He was most concerned that Kate arrange for Gill and his daughter to visit as well as notify his wife what had happened to him. Kate briefly described this unusual family situation in his notes and suggested that discreet management of visitors was required as part of his nursing care. The next day, as she entered the unit, she noticed several nurses – one of them from the neighbouring renal unit – huddled around Rosss case notes. They were whispering and giggling, apparently about her notation regarding his family situation. This chapter introduces the concepts of privacy and confidentiality in relation to the management of patient information, and outlines legal requirements for reporting harmful conduct of health professionals and others. The above case demonstrates how easily private and sensitive information recorded about a patient can result in a breach of confidentiality and unprofessional conduct. Kate appropriately recorded very personal information Ross had disclosed to her because she judged that it was relevant to his care. Yet other nurses perceived this to be a source of curiosity and gossip, and in sharing this with a nurse not involved in his care, had breached Rosss confidentiality. Their conduct was therefore unprofessional and disciplinary action should have been taken (see the section on mandatory reporting below).

Ethics and Law for Australian Nurses: Understanding legal rights and obligations

LEARNING OBJECTIVES In this chapter, you will: Gain an understanding of the social basis of rights Develop an understanding of why laws should be morally justified Gain an understanding of social contract theory and its limitations Be introduced to the ‘capabilities approach’ as a moral basis for legal rights In 1997, Ms Lorraine Smith was interviewed for a position as a director of the Red Meat Producer Corporation. At the time of her interview, she was seven months pregnant. During the interview she was asked whether she was married. When she replied that she was married, she was then asked why she had lied and left this information off her application. Ms Smith replied that it was irrelevant. One of the interviewers then stated that he had a problem employing young people with children. After the interview, Ms Smith complained about the questions to a member of the panel who was representing the recruitment agency. The representative concurred and likened the situation to the dark ages. Ms Smith lodged a complaint with the Human Rights and Equal Opportunity Commission (HREOC), claiming she had been treated with discrimination on the basis of her marital status because the questions were in violation of the Sex Discrimination Act 1984 . HREOC found in her favour and awarded damages. ( Smith v Commonwealth [2000] HREOC 3 (31 January 2000)) HREOC determined that Lorraine Smiths rights had been violated, and that the Red Meat Producer Corporation had failed to live up to its legal obligations. In handing down his determination, the commissioner took the view that the interview panel did not adequately understand the legal rights of the applicants nor, consequently, how to act in accordance with those rights. A right is a justified entitlement to something – for example, the right to vote in democratic elections. The entitlement to that right is justified by the value Australian society places on the idea of the moral equality of citizens and self-determination. Rights also entitle us to demand that other people act (or refrain from acting) in certain ways. For example, the right to vote in democratic elections obliges other people to refrain from interfering with a persons free choice of candidates.

Ethics and Law for Australian Nurses: Understanding the human person

LEARNING OBJECTIVES In this chapter, you will: Develop your appreciation of the complexity of the concept of ‘person’ Develop your understanding of ‘personhood’ as a relation between biological, interpersonal and social aspects of a human being Develop an understanding of human vulnerability, and how this makes possible the capacity to care for each other Gain a sense of the ways in which your beliefs about yourself affect your capacity to care for yourself and others In 2004, the Chief Justice of the Family Court of Australia, Alistair Nicholson, made a determination that a 13-year-old child (known as Alex) could proceed with medical treatment that would permanently change that childs gender from female to male. Justice Nicholson noted that Alex had the physical appearance of a girl and normal female chromosomes, but had a ‘longstanding, unwavering and present identification as male’ ( Re Alex [2004] FamCA 297, para 80). In coming to a coherent determination of what was in Alexs best interests, Justice Nicholson gave due consideration to Alexs personal and family history; Alexs subjective perception of his situation; the nature of Alexs relationships with family and friends; and the relevant scientific and medical information pertaining to Alexs mental, physical and sexual health. Experiences such as Alexs raise questions about the nature of human identity: What is the connection between the physical body and a persons psychological outlook? What part do early life experiences play in shaping a personality? What part do social influences play in shaping a personality? Is there an essential defining quality that all persons share? Is there a proper or an improper way to be a male or female? Where do we get our ideas about persons and gender, as well as what is proper or improper? As a nurse, you will be called upon to support, care for and protect people who are vastly different from yourself. How you respond to the diversity of human beings will be a measure of your own humanity as well as your professionalism. Certainly, caring does not come as easily to some nurses as it does to others. After all, it is not always pleasant being around incapacitated, sick or grieving people. So why do people want to support the ill or incapacitated? What is it about human nature that causes people to care for each other at all ?

Ethics and Law for Australian Nurses: Duty of care and professional negligence

LEARNING OBJECTIVES In this chapter, you will: Develop an understanding of the concepts of ‘duty of care’ and ‘standard of care’ Learn how a nurses ‘scope of practice’ is determined Learn how a nurses actions or omissions may be determined to be negligent Learn how to avoid acting negligently Gain an understanding of vicarious liability and professional indemnity Two ambulance officers attended a collapsed, unconscious person. Following ambulance protocol, a dose of intravenous adrenaline was administered. The person remained unresponsive. A second dose of adrenaline was administered, as per the ambulance protocol. Consequently, the person suffered a cerebral bleed as a result of high blood pressure induced by the adrenaline. The ambulance officer was initially found to be negligent, but the finding was overturned on appeal. The appeal judge determined that, by following ambulance protocol, the ambulance officer did provide a reasonable standard of care, and that the harm suffered by the person was not the result of a breach of duty of care. (Eburn 2007) DUTY OF CARE Chapter 4 noted that nurses have a duty of care towards their patients. Duty of care refers to the legal obligation on a professional to exercise reasonable care and skill in the provision of professional treatment: a person comes under a duty of care in relation to the provision of advice or information if he carries on a business or profession and in the course of it provides advice or information of a kind which calls for skill and competence or otherwise professes to possess skill and competence and he provides advice or information when he knows or ought to know that the recipient intends to act or rely on it. (Mason J in Shaddock & Associates v Parramatta City Council (1981) 150 CLR 225 at 248–9)