Transcript File

The Law
Topic 02 Law
1. Development of Australian Law
2. Consent
3. Restraint
4. Documentation
5. Incident reports
6. Coroner
7. Negligence
8. Defamation
9. Bailment
10. Wrongful Disclosure
11. Court system
Controlling
Unpredictability of health
Laws
Civil law
Parliamentary law & statues
Client rights
Professional standards
Nursing Boards
Nurse patient
relationship
Ethics
Clinical
standards
GCP
Organizational
policies and
protocols
Introduction
Accountability and responsibility
Code of conduct
Accountability and
Responsibility
Review Accountability and
Responsibility
Accountability: the state of being answerable for one’s decisions
and actions. It cannot be delegated.
Responsibility: the obligation that an individual assumes when
undertaking to carry out planned/ delegated functions. The
individual who authorizes the delegated function retains
accountability
In law and ethics what does it mean?
•
A nurse must practice in a safe and competent manner
(Code of Conduct)
• A nurse’s primary responsibility is to provide safe and
appropriate nursing services. Any circumstances which may
compromise professional standards, or any observation of
questionable or unethical practice, will be made to an
appropriate person or authority.
Code of Conduct
Code of Conduct
• If the concern is not resolved and continues to compromise
safe and appropriate care, a nurse must intervene to
safeguard the individual and notify the appropriate
authority.
Code of Conduct
• A nurse must practice in accordance with laws relevant to
the nurse’s area of practice
• They must ensure they do not engage in practices prohibited
by such laws or delegate to others activities prohibited by
those laws
Code of Conduct
• A nurse must respect the dignity, culture, values and beliefs
of an individual and any significant other person.
• In making professional judgments in relation to individual’s
interests and rights, a nurse must not breach the human
rights of any individual.
Code of Conduct
• A nurse must treat personal information obtained in a
professional capacity as confidential
• A nurse has a moral duty and a legal obligation to protect
the privacy of an individual by restricting information
obtained in a professional capacity to appropriate personnel
settings and to professional purposes
c. Description of
Law
The law of Torts
A tort is usually described as a
civil wrong
The torts most relevant to
nursing are:
This law, by awarding
damages, compensates
individuals whose personal
rights, freedoms or interests
have been infringed by
others.
• Assault
• False imprisonment
• Negligence
• Negligent advice
• Defamation
• Bailment
Civil Law
• The person who initiates the action is called the plaintiff and
the person they are accusing is the defendant
• The plaintiff has the responsibility of proving the wrong
action.
• They only have to prove their case on the balance of
probability. Therefore the standard of proof is lower than in
criminal cases
Rights of patients
• Given by the law , ethics and professional standards
1. Development
Australian of the
Law
Rule of Law
• Basic principal in the Australian ( any) legal system
• People must obey the law and be ruled by it.
• No person is beyond the law
• ‘govern by the law and not by men’
Where does law come from
• 2 main sources of law in Australia are the common law and
legislation
• Common law consists of the principles developed by judges in
cases that come before them
• Legislation is the law passed by the Parliament, or some
other bodies under delegation.
Federal and State Legislation
• Each State through their individual constitutions may pass
laws for the peace order or good government of the State.
• Federal parliament may pass legislation as specifically
determined by the Commonwealth Constitution
Parliamentary law
• One of the functions of a parliament is to enact legislation,
known as Acts or Statutes, they are designed to regulate
certain aspects of society
• An Act of parliament is considered to the primary source of
the law.
• This means that the law contained in legislation has priority
over common law.
Procedure
• An item of legislation will be known as a ‘Bill’ prior to it
being finally passed in law when it then becomes and Act.
• There are many Acts of parliament at both State and
Federal levels which regulate and control the practice of
health professionals and the provisions of health services
Acts
• At the State level there are Acts which control the
registration and regulation of health professionals,
occupational health and safety and for providing avenues for
complaints by health care consumers
Acts
• At the Federal level the legislation is primarily directed to
issues of funding and regulating the Commonwealth health
care agencies and services
Regulations
• One of the last section in an Act confers on the GovernorGeneral the power to make regulations that may be
necessary for the administration of the Act. Regulations
provide the essential details of administration which can
alter more frequently than an Act can be amended by
parliament
Few words
• Autonomy - self determination –Choose right to choose
• Fairness
• Legislature
• Bill
- Act –
• Judiciary
• Policeman of law
• Common law
• Parliament law
The Nurses Act 1999
• Determines there will be a Nurses Board responsible for the
regulation of nurses in South Australia.
• The board must fulfill all of its functions under the Act with
a view to ensuring the community has access to nursing care
of the highest standard and to regulate nursing in the public
interest
Review of the Nurses Act
•
Currently under review
• Consultation is occurring between a number of key
organizations such as:
• RCNA (SA branch)
• ACMI (Aust College of Midwives)
• ANZCMHN (A&NZ College of Mental Health
Nurses)
• ANF
Review of Nurses Act
• The Nurses Board of South Australia is a key collaborator in
this review and has the mandate, functions and powers to
administer the Act in the public interest
Other legislation
• Mutual recognition (SA) Act 1993 utilised by the Nurses
Board of South Australia and Mutual Recognition Act 1992
( Commonwealth Act) adminstered by all Australian States
and Territories
• Trans- Tasman Mutual Recognition (SA) Act 1999
• Administrative Appeals Tribunal Act1975
Other Legislation
• Births, Deaths and Marriages Registration Act
1996
• Children’s Protection Act 1993
• Coroners Act 1975
• Consent to Medical Treatment and Palliative Care
Act 1995
• Controlled Substances Act 1984
• Drugs Act 1908
• Drugs of Dependence (general) Regulations 1985
Other Legislations
• Equal Opportunity Act 1984
• Firearms Act 1997
• Freedom of Information Act 1991
• Guardianship And Administration Act 1993
• Juries Act 1927
• Limitations of Actions Act 1936
• Medical Practitioners Act 1983
• Mental Health Act 1993
Other Legislation
• Occupational Health Safety & Welfare Act 1986
• Occupational Health Safety & Welfare Regulations 1995
• Ombudsmen Act 1972
• Pharmacists Act 1991
• Public and Environmental Health Act 1987
• Racial Vilification Act 1996
Other Legislation
• South Australian Health Commission Act 1976
• Supported Residential Facilities Act 1976
• Therapeutic Goods Act 1989
• Therapeutic Goods Regulations 1990
• Whistleblowers Protection Act 1993
• Privacy Act
• Aged Care Act 1997
The Register and Roll
• The 1999Act established a single register which records all
persons that have met the entry to practice requirements
for the registered nurse
• The roll records all persons who have met the entry practice
requirements for the enrolled nurse.
2. Consent
“Volunteer wiliness by the client to health
intervention “
Consent
• It is a legal requirement that health professionals obtain a
consent from patients prior to any form of contact
• Obtaining a patient’s consent before touching them converts
what would otherwise amount to assault and battery in to
lawful touching
Assault
• Assault involves the creation in the mind of another of the
fear of imminent, unwanted physical contact. The threat
does not need to involve any actual touching, nor does it
need to be explicitly communicated
Battery
• The actual touching of the person without their consent
• The touching of the patient must be intentional
• The patient does not need to be aware. They can be asleep,
comatose or anaesthetise.d
Consent
• For the act of consent to be legally or ethically valid it must
be genuinely voluntary and can be given only by a person
judged to be mentally competent.
• It is necessary the therapist disclose information
appropriately and that patients comprehend information
adequately.
The Major Elements of Informed and
Valid Consent
• Competence of the patient
• Competence of the staff
•
Disclosure all necessary information
• Volunteerism
• Understanding and acceptance by the patient
Categories of consent
a) Implied Consent
b) Verbal Consent
c) Written consent
a. Implied Consent
• The most common in the normal daily activities of health
professionals.
• In clinical practice the nurse must ensure their
understanding of what the patient has consented to is
consistent with the understanding of the patient.
• “ Daily TPR , walking on to consultation room “
b. Verbal Consent
• Agreement to treatment is stated by the patient. Must be
obtained for more invasive procedures
c. Written consent
• Hospital policy usually requires consent for invasive
procedures to be obtained in writing and witnessed.
• It is the responsibility of the health professional carrying out
the procedure to ensure that a valid consent is obtained
Variations in
taking consent
1.
2.
3.
4.
Children
Emergencies
Intellectual incapacity
Refusal to consent
1.Children
• A parent or legal guardian is capable of consenting to the
medical treatment of their child. Authority of the parent is
not absolute and can be overridden by the courts or
through legislative provisions
• Consent to Medical Treatment and Palliative Care Act
1995
• Any person over 16 years and over may consent to medical
treatment
2. Emergencies
• ‘Doctrine of Emergency’ is used when a patient requires
emergency treatment and is incapacitated to give valid
consent.
• When the client has refused treatment, for example a blood
transfusion on religious grounds, the health unit is powerless
to override the client’s stated wishes
3. Intellectual incapacity
• Intellectually disabled persons may have consent to
treatment provided on their behalf by a relative, a person
appointed under the Guardianship and Administration
Board Act 1993 as a guardian or by the Board itself. Only
the Board is empowered, under legislation, to consent to
medical treatments and procedures such as termination of
pregnancy and sterilisation
4.Refusal to Consent
• Other than situations where there are specific legislative
provisions which authorize a substitute decision-maker, no
person has the legal ability to consent to the treatment of
another adult
• The patient has the legal right to withdraw consent and
refuse to continue to undergo the procedure, even if it will
result in death or permanent physical injury
Bailment
• The process whereby goods are entrusted to another.
Case Study – Mrs
Tweedle
See for
The case of Mrs Tweedle
Case Study – Mrs Tweedle
• Can you find an example of possible:
Negligence?
Defamation?
Assult?
False Imprisonment?
Situations which relate to nurses
• Refusing to allow a person to leave a premises (detention)
• Placing physical, chemical or mental restraints on a person,
and thereby preventing them from freedom of movement (
restraint)
3. Restraint
See document for
nbsa Standard for the Use of Restraint
nursesboardsouthaustralia
Restraint
• There is a standard for the use of restraint endorsed by the
Nurses Board of South Australia. All registered and enrolled
nurses should make themselves aware of the content and
implications of this standard.
• There will be a policy for restraint in your organization.
FOLLOW IT!
False Imprisonment
•
Where a patient alleges that a health professional has
interfered with their freedom of movement the action is
referred to as false imprisonment
•
Restraint may be:
1.
Physical
2.
Chemical
3.
mental
4. Documentation
See document - guiding principles for
documentationapril 2006
nursesboardsouthaustralia
Documentation
• The existence of adequate and appropriate documentation is
a means of establishing whether or not a nurse has practiced
according to professional standards
• Documentation means it is done and no documentation
means it has not been done
Institutional Policies
• Many organisations have policies regarding who can make
entries and whose entries must be countersigned by a
registered nurse, who then shares the legal responsibility and
accountability for what is written
Legal Requirements
• Patient care documentation is a legal requirement
and can be used as evidence in courts for either
civil or criminal proceedings
• Case notes must be kept for seven years after
patient care has ceased or seven years after a child
becomes an adult. This is based on the limitations of
court action periods and also allows an extra year
for the case to be heard.
Case Notes
• Are used as a written communication in hospitals
and health agencies and are in effect, proof of
evaluation and care.
Case notes:
• Provide information on the progress and condition
of the client
• Record treatment provided
• Form a history for future consults
• May be used for teaching or research ( with client
permission)
Important points in
taking in case notes
1. Clear, Concise, Accurate
• Documentation must be objective and relevant, and worthy
of independent scrutiny.
• The condition of the patient, their demeanor or state of
mind may be used at a later time to provide evidence of an
allegation of negligence, malpractice, or the degree of
damage and disability sustained by the patient
2. Timing
• If a patient’s condition becomes unstable or
deteriorates it would be necessary to carry out and
document observations more frequently. It must be
relevant to the event and be recorded in
chronological order.
• It is not acceptable to go back and add information
to the medical records once the health professionals
becomes aware that litigation has been initiated
3. Even routines must be documented
• Even the routine observations and assessments undertaken
on the patient must be recorded
•
Jarvis v St Charles Medical Centre (1996)
4. Time and Date
• All entries must have complete date and time of the entry
and the writer of the report clearly identified by the their
signature and designated position.
• The 24 hour (military) clock is the most effective
5. Legible
• There is little value in maintaining records that are not able
to be read or understood by others
6. Avoid documenting what you have
not witnessed or assessed
• Where the event has not been witnessed the
information is hearsay evidence
• If the patient relates an incident that has occurred
without a witness, then the records should clearly
reflect that it is the patient’s version.
• The principle also applies to charting of signing for
work done or observations made by other health
professionals. Each report should be an accurate
record of what the person signing the entry knows
to be true
7. Pages must be identified
• Each page of a patient’s medical records must identify them
by name and numerical identifier i.e. MRN or DOB
8. Abbreviations
• Abbreviations and popular terms must conform with the
institutions policy or protocols.
• There is always a danger using abbreviations that are not
commonly known
9. Use objective and factual
descriptions
• Do not use ‘appears’ ‘apparently’ Write an accurate, specific
and factual description of the physical condition
• Eg ‘the patient’s speech was slurred and he was walking
with an irregular gait.
10. Charting must not occur in
advance
• The health professional must never chart a report on a
patient in advance
11. Reports must not be tampered
with
• Reports should not be rewritten at a later time and entries
must be sequential following directly on from the previous
report.
• This avoids the possibility of tampering with, adding to or
backdating entries with information that may be
detrimental and expose the health professional to legal
liability
12. Errors should not be erased
• When an error is made in the recording of information the
policy or procedure of the hospital should be followed.
• The usual procedure will require that a line is drawn through
the erroneous material, identifying it as having been written
in error and initial it.
12. Use ink
• Documentation in the medical records is to be written in
ink.
• Follow the organizational policy regarding colours which may
be used
13. Read the medical record
• Despite a verbal handover it is complimentary to
the written report.
• There is always the possibility that the professional
giving the verbal handover has forgotten something
or failed to recognize the significance of information
which became available during the shift.
• As a result information which may be critical to the
patient’s care and treatment will be missed.
Computerised Records
• The use of information systems to create and maintain
patient’s medical files has resulted in more accurate, easily
accessed and up-to-date information on each individual
patient.
Unacceptable Documentation
• 14/11
• Usual
• Around 5 or 6
• 7 sutures
• Following argument
• Signature scrawls
• Hit him on the head with
an axe
• Probably
• Cut about 15cms
• Drunk opinion statement
• Completion of report
In cases of negligence
The plaintiff's lawyer will be looking very closely at the
documentation in the clinical records and will especially
look for the following
• Deliberate inaccuracies
• Deliberate alterations
• Destruction of part of a record
• Failure to record that a Dr’s orders have been followed
through
• Failure to record administration of medications
In cases of negligence
• The plaintiff’s lawyer will be attempting to place doubt on
the credibility of the defendant’s (nurse) professional
practice. The lawyer has only to show that the nurse’s
practice was such that it was foreseeable and probable that
negligence could result.
Issues
• Potential threat to the privacy of the patient.
• Policies and protocols must be in place for the protection of
the patient’s rights to privacy and confidentiality in relation
to their health information
5. Incident
Reports
Incident Reports
• One important area of documentation is that
involving incident reports.
• Even when the nurse uses caution to provide safe
patient care, accidents do happen.
• An incident form complete with all the facts, needs
to be filed in the client’s case notes. The actions you
undertake following an incident must be
documented in the case notes also.
Incident Reports
• Identify unsafe practices and work environments
• Provide information about unusual occurrences
• May be used as a record of an event in a defense to a legal
action report of staff failure to follow accepted practice/
documentation
Incident Reports
Are therefore potentially very important legal documents
It can be seen from the administration point of view the
incident report is used at several levels.
• Identification of existing or potential problems
• Provision of adequate remedies where these have occurred.
Incident Reports
• Monitoring of the effect of remedies
• Elimination of unsafe practices ( industrial health and safety
legislation requires employers to take specific measures for
developing safe work environments)
• Prevention of workers’ compensation claims
• Prevention of and/ or protection in law suits
Incident Reports as Evidence
• Where an account of an unusual event is
documented in an incident report it can be used, as
can other medical records, to establish the facts for
legal purposes
• This means that the incident report can provide
protection of staff where it shows clearly that care
was reasonable, and if the event was due to
negligence, it can establish that reasonable steps
were taken to remedy any harm caused, thus
helping to lessen the damages for which anyone is
liable
Checklist for Incident Reports
• Date and time of incident
• Place where the incident occurred
• Name of all parties concerned (written legibly)
• Brief but full accurate account of what the writer
experienced ( no hearsay unless identifies as such)
Checklist for Incident Reports
• If the patient was harmed, their condition before
the incident took place
• Any harm caused and to whom or what it was
caused ( objective observations)
• Any action taken, and by whom it was taken (e.g.
Dr called, relatives informed, treatment given)
• Any further treatment ordered and follow – up
requirements ( such as observations, check ups)
Checklist for Incident Reports
• List of witnesses (legible)
• Where the report concerns faulty equipment, the equipment
should be clearly identified: location and identifying number
or name, and the sign which has been attached to the
equipment warning of its fault should be identified.
Reporting a Serious Incident
• It is crucial that authorities are notified
immediately, not only to provide are for anyone
injured, but also to enable the hospital insurer and
solicitor to be contacted. This should be done within
hours of the event, by phone
• There is a difference between the incident report
and any statement made to a lawyer. The latter
may be protected by legal privilege.
Making a statement
• Nurses should avail themselves of legal advice if they are
asked to make a statement, or wish to do so, and are in any
way concerned that they may be legally implicated with
what they say.
• Nurses should resist attempts to get them to make
statements which they do not believe are a true
representation of the facts, or to alter their statement.
Ownership
• Ownership of the medical records rests with the
medical practitioner or the institution that created
them, but the right to withhold the records in
relation to public hospitals is overridden by the
Commonwealth, State and Territory freedom of
information legislation.
Any right of the health care provider to withhold the
records is also subject to court orders and legislation
which may compel the production of documents for
the purpose of legal proceedings
Access to the Records
• During a period of hospitalization the patient’s daily
records are securely stored away from public areas,
and patients will be required to seek the approval of
the treating medical physician prior to being
permitted to access their documents.
• There is no common law right for a patient to
access the information contained in their medical
records
Access to the Records
• There are a number of mechanisms by which a patient, or
their legal representative, may gain access to the
information.
• These include: freedom of information and other relevant
legislation; government policy; pursuant to the court process.
Limits of the obligation of
Confidentiality
• There are a number of circumstances that information is
required to be disclosed
• Public health legislation requires mandatory disclosure of
suspected child abuse, and suspicious injuries.
• Notifiable diseases include AIDS, gonorrhea, syphilis,
smallpox, hepatitis, typhoid, leprosy, cholera, and non
infectious diseases such as cancer.
Notification
• Midwives, medical practitioners and nurses are
required by legislation to notify the registrar of
Births, Deaths and Marriages of any birth of death
they attend.
• The Coroners Act imposes a legal obligation on
medical practitioners to inform the Coroner of any
death which occurs in circumstance specified in the
legislation
6. Role of the
Coroner
The Coroner
• The Coroner’s court forms part of the court
hierarchy.
• The significance of the coroner lies in the power,
inherent in legislation to public hearings on
‘reportable’ deaths (inquests) in which public issues
can be considered.
• The coroner is involved in the investigation process,
in order to determine the cause of death
Function of the Coroner
• To investigate deaths which occur in certain circumstances
• The coroner engages a detailed investigation drawing
together the facts through an examination of the pertinent
scientific data and calling witnesses the coroner considers are
relevant to the inquiry.
Function of the Coroner
• The coroners finding include recommendations as to
changes in practice or standards, where necessary.
• There is also some degree of communication with
other agencies. For example, should a health
professional’s conduct be of concern to the coroner
it is likely the professional regulatory authority, such
as the Nurses Board, may be sent the coroners
report
Reportable Deaths
• The category of death which should be conveyed to
the coroner is usually referred to as a ‘reportable
death’
• Accidental, sudden or violent death or those arising
from fires or drowning
• As a result of anaesthetic
• A death in a prison, psychiatric institution or in
State care.
• When the deceased’s identity is unknown or there is
no death certificate
Reportable Deaths
• The attending doctor or hospital administration is
responsible for reporting the death.
• If the deceased is to have organs harvested and it is a
‘reportable death’ the coroner’s consent is required.
Specific Procedures and
Documentation for the Coroner
• Follow the institutions procedure for notifying the
coroner of the death.
• Fill in the specific documentation required to certify
death
• Usually minimum interference with the body is the
guiding principle.
• All tubing, catheters, endotracheal tubes, central
and intravenous lines, urinary catheters and drain
tubes are left in situ. They may be cut and tied or
the entire tubing placed in a plastic bag and kept
with the body
Coroners Court
• Findings from investigations conducted by the Coroner can
be viewed on the website:
www.court.sa.gov.au/courts/coroner
Eg Dorothy Squires: case where a nurse administered the
wrong blood.
Go through a day at work
• Go through the tasks you will perform in a single
working day
• Eg take handover
• Perform ADL’s
• Administer medications
• Document
• Speak to relatives
• Admit and discharge patients
• Patient education
7. Negligence
Review Accountability and
Responsibility
Accountability: the state of being answerable for one’s decisions
and actions. It cannot be delegated.
Responsibility: the obligation that an individual assumes when
undertaking to carry out planned/ delegated functions. The
individual who authorizes the delegated function retains
accountability
In law and ethics what does it mean?
•
A nurse must practice in a safe and competent manner
(Code of Conduct)
• A nurse’s primary responsibility is to provide safe and
appropriate nursing services. Any circumstances which may
compromise professional standards, or any observation of
questionable or unethical practice, will be made to an
appropriate person or authority.
Code of Conduct
• If the concern is not resolved and continues to compromise
safe and appropriate care, a nurse must intervene to
safeguard the individual and notify the appropriate
authority.
Code of Conduct
• A nurse must practice in accordance with laws relevant to
the nurse’s area of practice
• They must ensure they do not engage in practices prohibited
by such laws or delegate to others activities prohibited by
those laws
Code of Conduct
• A nurse must respect the dignity, culture, values and beliefs
of an individual and any significant other person.
• In making professional judgments in relation to individual’s
interests and rights, a nurse must not breach the human
rights of any individual.
Code of Conduct
• A nurse must treat personal information obtained in a
professional capacity as confidential
• A nurse has a moral duty and a legal obligation to protect
the privacy of an individual by restricting information
obtained in a professional capacity to appropriate personnel
settings and to professional purposes
The law of Torts
A tort is usually described as a
civil wrong
The torts most relevant to
nursing are:
This law, by awarding
damages, compensates
individuals whose personal
rights, freedoms or interests
have been infringed by
others.
• Assault
• False imprisonment
• Negligence
• Negligent advice
• Defamation
• Bailment
Civil Law
• The person who initiates the action is called the plaintiff and
the person they are accusing is the defendant
• The plaintiff has the responsibility of proving the wrong
action.
• They only have to prove their case on the balance of
probability. Therefore the standard of proof is lower than in
criminal cases
Duty of Care
• In all but unusual circumstances where there is a health
professional- patient relationship there will also be the
legally recognised relationship upon which the courts impose
a duty of care
What is duty of care?
Duty of Care
• It is commonly accepted that it is a nurse’s duty to care for
the sick.
• At laws however ‘duty of care’ has a different meaning
• The modern test for establishing the existence of a duty of
care may be found in the House of Lords decision in
Donoghue v Stevenson [1932]
‘The neighbour principle’
What was the significance of this
case?
• It established that a serviced provider is legally liable
for the effects of his/her actions towards a third
party. Prior to this, a person could only sue for
negligence if a contract existed and was breached in
some way.
• Duty or care is a principle of law in which a person
need not be in a contractual agreement to be liable
for an action under the tort of negligence
In the health context
• A duty of care arises when a person becomes a client of a
health professional.
• Nurses owe no duty of care outside the workplace.
• A nurse is not legally bound to stop at an accident and
provide assistance. However in moral terms, you may
consider that you should assist wherever possible
Duty of Care
• If nurses do attend to assist the injured they assume
a duty of care which would otherwise not be owed
if they chose not to stop.
• The standard of care would be that of ‘any
reasonable rescuer’ in the environment in which the
accident or injury occurred. There is no expectation
that you could deliver the same standard of care
that would be anticipated in the hospital setting.
Duty of Care
• To determine whether a duty of care exists the court will examine
the circumstances of each case.
• The legal system uses several principles one of which is reasonable
foreseeability, another is proximity
Foreseeability
• One aspect of foreseeability relates directly to a nurse’s level
of training.
• E.g. a registered nurse will be expected to have a greater
degree of knowledge than an enrolled nurse, who in turn will
be expected to have a greater knowledge than a carer or lay
person
Foreseeability
• A nurse’s level of training, knowledge, skill and
expertise have a direct relevance to foreseeability,
which in turn forms one element when deciding
whether a duty of care exists. Foreseeability is the
ability to predict that if certain actions are or are
not taken, a consequence may arise that lead to a
breach of duty of care ( negligence)
• Conversely if the consequences are not foreseeable,
negligence cannot be proven at law
Proximity
• Another principle which also may help establish whether a
duty of care exists that of proximity. The principle involves
the relationship between the plaintiff( client) and the
defendant ( nurse/ health unit). Nursing practice brings you
in close contact with the client, therefore the court would
not find it difficult to establish that a relationship of close
proximity exists
Negligence
• Is the most frequent type of civil action in our courts. It is by
far the most common tort alleged against health
professionals.
• In order to win an action for negligence a plaintiff must
prove four matters
4 D’s of Negligence
1.
DUTY: the existence of a duty of care
2.
DERELICTION: Breach of the duty by failing to live up to
the appropriate standard of care
3.
DAMAGE: is suffered
4.
DIRECT: a sufficiently close connection between the act or
omission of the defendant and the damage.
Negligence
• ALL FOUR ELEMENTS MUST BE PROVED BY THE
PLAINTIFF ON THE BALANCE OF PROBABILITIES
• That is by the nurse’s act, or omission of an act, it must be
reasonably foreseeable that damage could result
Determination of a standard of care
• ‘The standard of reasonable care and skill required is that of
the ordinary skilled person exercising and professing to have
that special skill’
• Where a health professional has worked in a clinical area for
a prolonged period and undertaken postgraduate
qualifications the standard will be commensurate with that
level of skill and experience
Determination of a standard of care
• Other indicators are: relevant research data, affidavits and
testimony of peers and experts in that particular clinical
area.
• Policy and procedure documents of the employing
institution, policy documents of the Department of Health,
and standards set by specialist organizations and colleges
Determination of a standard of care
• Who determines the standard? Health professionals set the
standard to be considered ‘reasonable’ in the delivery of
patient care.
• The determination as to whether there has been a breach of
care will require consideration of the conduct in light of the
standards of practice at the time the incident occurred.
Determination of a standard of care
• Failure to disclose risk, based on the standard of care which
focuses on the rights of patients to self determination and
autonomy
Damage
• Damage is the ‘gist’ of an action of negligence. No
matter how reckless a health professional may have
been in the care of the patient, if the patient has
not sustained any injury as a result of that conduct
there can be no claim for damages
• Relatives or dependants of a patient who has died
due to the negligence of a health professional can
initiate an action for damages
Damages recognised by the court
• Physical Injury: harm to the body
• Nervous shock: clinically demonstrable mental illness or
disorder which renders the person unable to maintain their
pre-event lifestyle
• Pure economic loss: due to negligence of another
Causation
• Questions of causation are questions of fact. In the health
care context this is often the most difficult element for the
plaintiff to prove
• The plaintiff must prove, on the balance of probabilities, the
damage now claimed has been the result of the defendant’s
conduct, not a natural progression of the disease or disorder
Case Study
• Consider a situation in which a client sustains a needle stick
injury from an uncapped needle left accidently in the bed.
• To establish a case of negligence, apply the principle’s of the
4D’s. How many of the exist in this case?
• Could a successful action for negligence be the outcome of
this incident?
Civil courts are not the only legal forums who
exam professional practice
• Civil courts
• Criminal courts
• Tribunals
• Royal Commissions
• Regulatory authorities
• Employers
• Coroner’s court
• NBSA
Policies and Procedures
• A health unit may also conduct its own investigations to
determine whether there has been a breach of its policies
and procedures. These serve to establish nursing standards.
• An organization is also vicariously liable for any injury which
results from faulty equipment used in the care of clients
Policies and Procedures
• This aspect of vicarious liability justifies the existence of
policies related to the care and maintenance of equipment
and the associated documentation required.
Have you ever placed yourself at risk?
• Think about your own practice.
• Have you ever placed yourself at risk by accepting the
direction of a senior staff member to perform duties beyond
you level of training or experience?
When allocated a task
• You always need to consider the following:
• Your level of training in relation to the task
• Your experience relevant to the task
• The senior nurse’s assessment of you ability to work
unsupervised
• The constraints of your role, eg an EN may not administer
intravenous drugs
What protects you?
• Your own accountability
• Your employer is required to provide a safe work
environment for you to carry out your duties
• Your institution is also required to have policies and
procedures in place for this purpose
Vicarious Liability
• The Wrong’s Act prevents an employer recovering costs
directly from an employee. Therefore although the nurse
may have created the liability, the employer is liable to pay
the charges. The nurse may still however, be referred to the
Nurses Board for an examination of professional conduct.
Vicarious Liability
• Common law concept, and serves to shift the financial
responsibility from the individual who has been found liable
for the damage to another individual or entity that has a
greater financial capacity to bear the loss.
• An employer will be financially more capable than the
employee of meeting the cost of compensating the plaintiff.
Vicarious Liability
•
The doctrine applies when an employee in the course or
scope of his or her employment negligently injures a
patient.
•
The two tests are:
1.
Is the negligent individual an employee
2.
Did the negligent conduct occur within the course and
scope of the employment
The Major Elements of Informed and
Valid Consent
Elements which enable a valid consent

Competence

Voluntariness
Elements which Inform
1.
Disclosure of Information
2.
Understanding and Acceptance of Information
Consent
• It is a legal requirement that health professionals obtain a
consent from patients prior to any form of contact
• Obtaining a patient’s consent before touching them converts
what would otherwise amount to assault and battery in to
lawful touching
Consent
• For the act of consent to be legally or ethically valid it must
be genuinely voluntary and can be given only by a person
judged to be mentally competent.
• It is necessary the therapist disclose information
appropriately and that patients comprehend information
adequately.
Assault
• Assault involves the creation in the mind of another of the
fear of imminent, unwanted physical contact. The threat
does not need to involve any actual touching, nor does it
need to be explicitly communicated
Other readings needed
8. Defamation
9. Bailment
10. Wrongful Disclosure
11. Court system
What legal and ethical parameters impact on
your day to day practice?
THANK YOU !
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