CHAPTER 11. An introduction to legal aspects of nursing practice∗
Judith Mair
LEARNING OBJECTIVES
KEY WORDS
INTRODUCTION
Today, more than ever, nurses have to consider the legal implications of their practice. Litigation against healthcare professionals has increased as healthcare consumers become more aware of their legal rights and, as the law develops, to recognise more factual circumstances that can give rise to a legal action. Operating alongside these changes is a higher patient expectation of a good outcome from the delivery of healthcare services.
This chapter serves as an introduction to law relevant to nursing practice. This introduction is necessarily brief, and does not cover all aspects of the law that affect nursing practice. Nurses should develop a deeper understanding of the legal system in which they practice, and the laws that govern clinical practice, through lectures and further reading.
THE COMMON LAW BASIS
The common law developed in England from the fourteenth century and became the basis of the legal systems of countries that were colonised by England. Thus the English common law forms the basis of the legal systems of, among others, Australia, New Zealand, Canada and the United States. It is within these jurisdictions, as well as in England, that law relevant to nursing practice has developed.
The primary source of law in common law countries is a combination of common law and legislation. Common law consists of the application of legal principles developed in past cases to determine the outcome of present cases. Common law is based upon the doctrine of precedent (i.e. by looking at how cases have been decided in the past and applying the principles developed in those cases to the present). Cases that have an important impact on the common law are reported in law reports relevant to particular courts. Less important cases are unreported but can still be accessed.
Precedents are either binding or authoritative. Binding precedents are those laid down by a high court in a hierarchy of courts, which a lower court must follow. In the absence of a binding local precedent, a court may apply authoritative precedents, which are binding principles developed in courts of other jurisdictions, and which appear to be good law applicable to the local jurisdiction.
The common law remains the major source of law covering clinical practice. For example, the law relating to assault, false imprisonment, negligence and negligent advice is found within cases in which relevant principles of law recognising the right of a person to individual autonomy and bodily integrity have been developed. A court exercising equity can provide an alternate remedy where a common law remedy is insufficient to redress the wrong complained of. A court exercising equitable jurisdiction can issue an injunction to require another to desist from doing something, or can make an order for specific performance to a defaulting party under a valid contract to perform their part of the contract.
The second type of law is legislation, or statutory law, which is law developed by parliamentarians through the parliamentary process. An individual piece of legislation is referred to as a statute or an Act of parliament. Legislation is important in that legislative provisions prevail where there is any inconsistency with the common law. Thus parliamentary law can be used to change the law where it is considered that the common law is deficient.
Legislation can create new law that is not known at common law. An example of this is the statutory definition of brain death, which has enabled the removal of organs from a person whose brain has ceased to function but whose heart and lung activity is being sustained artificially.
Nurses practising in Australia need to be aware that, under the Australian system of Federation, the law can and often does differ from state to state or territory. As well as state-by-state and territory differences, the federal government has power, by virtue of the Constitution, to make laws that are binding on all states and territories (i.e. the Commonwealth of Australia Constitution Act). In some cases, this law-making power is exclusive to the federal government (e.g. the defence power). In other cases, the states and territories have a concurrent power to make law (e.g. taxation). However, in the latter case, a federal law will override a state/territory law where the federal law is intended to cover the field or there is an inconsistency between a valid federal law and a state/territory law (section 109 of the Constitution). The states and territories have residual power to make laws in all cases where the federal government has no power under the Constitution, express or implied, to do so. Most health law, such as the regulation of hospitals and nursing practice, falls within state/territory law.
Differences in law from state to state and territory are less obvious in common law cases. In the absence of any binding judgment from the High Court of Australia, judges in the superior courts of each state and territory are free to interpret and apply the common law as cases come before them for adjudication. However, judges generally adhere to the principles developed in previous common law cases heard locally, or from other respected common law courts.
It is within parliamentary law that significant differences can arise. Legislation in one jurisdiction (state/territory) does not bind people in another jurisdiction unless the legislation has valid extraterritorial application. Even in this latter case, there must be some connection with the state/territory promulgating (proclaiming) the law. Thus a criminal offence which is found in one state/territory statute cannot serve to convict a person where the offence occurs in a state/territory which does not have such an offence embodied within its legislation. Individual states/territories may enact parliamentary law to govern particular matters, while other states/territories may leave such matters to be covered by common law. For example, not all states/territories have legislated to control the reproductive technologies and those that have are not identical.
Law is divided into civil and criminal. Civil law involves legal actions taken by complainants against another or others seeking a civil remedy for a legally recognised wrong—for example, a complainant (the plaintiff) seeking compensation for pain and suffering as a result of a nurse giving an injection incorrectly. The negligent practitioner is normally referred to as the defendant in the case. The task (onus) of proving the case rests with the plaintiff on the balance of probabilities.
The criminal law consists of prosecutions brought on behalf of the state/territory to punish breaches of criminal offences, and a guilty verdict results in a fine and/or custodial sentence. The onus of proving a criminal offence lies with the prosecution, which must prove its case beyond a reasonable doubt. The criminal law of murder and manslaughter, criminal assault and criminal negligence are some of the major criminal offences that can apply to nursing practice.
Legislation in all jurisdictions provides for limitation periods to apply for civil claims in the courts (e.g. Limitation Act 1969 (NSW)). An aggrieved party must commence an action within the specified limitation period; otherwise the claim will become statute barred. Limitation periods vary from jurisdiction to jurisdiction, but most are around three to seven years after the cause of action arises, or, in some cases, when the plaintiff first becomes aware that a cause of action exists. Notwithstanding that a limitation period has lapsed, it is usually possible to apply to a court to extend a limitation period in prescribed circumstances (e.g. a person who contracts HIV through a blood transfusion may not be aware that they have contracted the disease until sometime after the expiration of a limitation period).
Whatever limitation period applies, most jurisdictions suspend the limitation period while an injured party is a minor. Therefore, a child who suffers an injury as a result of alleged negligence is not affected by a limitation period until reaching majority. A person acting as ‘tutor’ for the child may take action on behalf of the child in the child’s name prior to majority. If this is done, the evidence necessary to prove the case is more easily available sooner after the event than later.
Unless specifically stated, no limitation periods apply to most criminal offences. Thus a nurse who causes the death of a patient intentionally or recklessly could be charged with murder or manslaughter many years after the event should evidence to support such a charge arise.
CIVIL LAW
As noted above, civil law involves legal actions taken by complainants against another, or others, seeking a civil remedy for a legally recognised wrong. Nurses need to work within the context of civil law, as it relates to: patient safety; negligent advice; patient consent; patient freedom of movement; and patients’ property.
Patient safety
By the very nature of their practice, nurses are engaged in close physical contact with patients. Some of the procedures performed by nursing staff pose risks to patients should the procedures be performed without due care and skill. If a patient suffers harm as a result of a nurse’s failure to perform nursing duties at the standard to be expected of the nurse in the circumstances, then the patient has a right to sue in negligence to recover compensation.
Negligence is a tort, which means a civil wrong. The tort of negligence arises from the common law and is a means by which a person who suffers injury through a negligent act or omission can obtain compensation from the person responsible for the injury. The onus of proving the negligence lies upon the plaintiff, the person alleging the negligence. To succeed in an action of negligence against a nurse, the plaintiff must prove, on the balance of probabilities, that the nurse was negligent. The plaintiff must prove that the nurse owed the patient a legal duty of care, that the nurse breached this duty of care, and that the patient suffered harm as a result of that breach. The plaintiff must prove each and every one of these elements. Any act or omission that is not found to be negligent is referred to as an unavoidable accident.
In determining whether or not a legal duty of care exists, the courts resort to a test of foreseeability. Thus a duty of care can be shown to exist when a person can reasonably foresee that his or her acts or omissions are likely to place another at risk (see the case of Donoghue versus Stevenson [1932] AC 562). This is an objective test and the defendant’s conduct is measured by a ‘reasonable person’ test. The fact that something is foreseeable is not sufficient—the test is ‘reasonable foreseeability’. Thus it is reasonably foreseeable that a patient may suffer harm, such as nerve damage, if an injection is given incorrectly. On the other hand, it may not be reasonably foreseeable if the patient suffers some reaction to a drug which is idiopathic that could not have been anticipated with all proper care and history taking. Some risks are unknown and are therefore unknowable until such time as research and experience reveal them (e.g. the fact that giving Thalidomide to pregnant women to treat morning sickness can cause phocomelia in the unborn). Once known, the question arises as to whether the newly discovered ‘foreseeable’ risk is an ‘unreasonable risk’.
The duty of care is to avoid unreasonable risk of harm to another. All people living in a society are expected to take some care for themselves and cannot complain if they suffer loss or injury from an accepted risk of harm. The law will often determine an unreasonable risk of harm by looking at the harm that is likely to be caused and/or the frequency of its occurrence. For example, if a particular harm is known to occur frequently as a result of particular acts or omissions, then the law is likely to hold that these will give rise to a duty of care. Likewise, the law will hold that a duty of care exists in any case where the foreseeable risk can result in serious disability or death, however infrequently such harm is likely to occur.
In some cases the law will hold that a particular risk, which may normally be considered ‘unreasonable’, may be taken to avoid a greater risk of harm. This is sometimes referred to as ‘balancing the risks’. Thus it may be reasonable to do something that clearly poses a risk of harm to another, where the act is intended to avert a greater risk of harm. In one American case it was held that burns resulting from the application of hot water bottles in an emergency were not caused by negligence, as they arose from a calculated risk to avoid a grave risk of harm to the patient. The patient was suffering from severe shock caused by severe postpartum haemorrhage and the hot water bottles had been applied as a part of emergency treatment (McDermott versus St Mary’s Hospital 133 A 2d 608 (1957)).
Clearly, a duty of care will exist to avoid unreasonable risk of harm to patients receiving nursing care. However, the law does not require that there be an identified person in existence at the time that a negligent act or omission occurs. The law can impose a duty of care in circumstances where a class of persons is likely to be affected now or in the future. Thus, a duty of care can arise to avoid harm to an unborn child, as well as to one that is not even conceived at the time of the negligent act or omission. In such a case, the child must be born alive and prove that any injury present at birth resulted from a breach of duty to take care not to injure it while it was unborn (X & Y (by her tutor) versus Pal and Ors (1991) 23 NSWLR 27).
Whether or not a breach of the duty of care has occurred requires consideration of the standard of care required in the circumstances. The standard of care is not perfect care, but reasonable care. It is an objective test and therefore is not dependent upon the particular skills and knowledge of the practitioner. The standard expected of the healthcare worker is that which is attributed to the class of healthcare workers to which the defendant belongs. Thus the conduct of a nurse will be measured against that of the ‘hypothetical reasonably competent nurse’.
Nurses who claim to have special skills will be required to exhibit a higher standard of care. Thus the clinical nurse specialist will be measured against the standard of the reasonably competent clinical nurse specialist, while the general ward staff will be measured against the standard expected of the reasonably proficient general ward nurse. An enrolled nurse’s practice will be measured against that of the reasonably competent enrolled nurse.
The standard of care required can vary according to the condition of the patient and the patient’s capacity for self-care. In considering the standard of care required, the nurse must take into account characteristics of the patient that may pose an additional risk for that person. Thus a higher standard of care will be required for a patient recovering from a general anaesthetic following surgery than for a patient who is fully conscious and has been returned to the ward.
The circumstances in which care is being provided can also be a relevant consideration in determining the standard of care required. A nurse involved in resuscitating a person at an accident site away from a well-equipped hospital with trained staff at hand can only be expected to provide the standard of care that is reasonable in the circumstances. Provided the nurse exercises reasonable care and skill in the circumstances, there would be no breach of the duty of care.
Damage is the gist of the case in an action of negligence; a plaintiff must prove that foreseeable damage resulted from a breach of duty by the nurse. Damage may be physical, mental, financial, or a combination of these. Once the plaintiff has proved that the nurse’s breach of duty caused damage that was reasonably foreseeable, the defendant will be held liable to compensate for that damage and any further loss that flows reasonably and naturally upon the initial injury. Pain and suffering, loss of enjoyment of life, loss of expectation of life, loss of opportunity in life, and financial consequences are examples of accepted heads of damage (categories of damage recognised by the courts) for which compensation can be sought in a negligence action.
There is a principle in law that a person must take his victim as he finds him. This is called the ‘egg-shell skull rule’. What it means is that if the victim suffers greater harm because they have a particular disability, disorder or trait that renders them vulnerable to greater harm, then the tortfeasor must compensate for the full cost of the harm even though it is greater than that for other victims (Smith versus Leech Brain [1962] 2 QB 405). An example would be harm caused by increased blood loss where the victim is a haemophiliac. In such cases it is irrelevant whether the tortfeasor was aware that the victim was particularly vulnerable.
If death occurs as a result of negligence, legislation provides that prescribed persons, usually close relatives, can bring an action against the person whose negligence caused the death (e.g. Compensation to Relatives Act 1897 (NSW)), provided the deceased would have been entitled to make a claim had they lived. For example, a man and his children may commence an action to be compensated for nervous shock suffered as a result of the death of the wife and mother caused by a negligent nursing act or omission.
Finally, the plaintiff must prove causation—that is, that the breach of duty caused the alleged harm. To prove a direct causal connection, the ‘but for’ test can be applied. But for the act or omission of the defendant, would the plaintiff have suffered the alleged harm? Even when an act or omission can be shown to have been negligent, a claim for damages will fail if the plaintiff cannot prove that the alleged harm was caused or materially contributed to by the defendant’s negligent conduct.
There are three main defences to an action in negligence. These are contributory negligence, novus actus interveniens and volenti non fit injuria. A defendant can claim contributory negligence where the plaintiff can be shown to have been partially responsible for what happened. The court will award damages in proportion to the extent it accepts that the plaintiff was negligent (Kalokerinos versus Burnett CA 40243/95).
Novus actus interveniens is applicable when a second negligent act results in increased harm to a person who has suffered harm from a prior negligent act. However, the second negligent act must be such that the chain of causation flowing from the first negligent act is broken. For example, if a nurse’s negligence caused brain damage to a child, necessitating intensive care, and the negligence of a second nurse in the intensive care unit exacerbated the harm to the child, then the first nurse could still be held liable for the increased harm as it was the original tortfeasor’s act or omission which exposed the child to a subsequent risk of harm. However, if the child were discharged from hospital following the maximum care that could be given, and then dies from other injuries sustained in a motor vehicle accident caused through another’s negligence, then the first nurse is unlikely to be held responsible for the death.
Volenti non fit injuria applies when a plaintiff can be shown to have knowledge of risks and voluntarily undertakes those risks. As such, this defence has not been a major factor in cases involving the provision of healthcare services. Its main application is to cases involving sports and dangerous occupations. It cannot be argued that a patient voluntarily agrees to accept all known risks in healthcare.
When a plaintiff has suffered harm as a result of another’s negligence, the plaintiff is required by law to minimise (mitigate) any loss. Thus an injured person is required to take reasonable steps to reduce the effects of (ameliorate) the harm caused. To the extent that there is an unreasonable failure to mitigate, a court will discount the amount of compensation that the plaintiff would have received.
In 2002, the New South Wales Parliament enacted the Civil Liability Act, which modifies the law of negligence for New South Wales. In addition to statutorily providing the principles upon which claims for negligence may be made, which reflects the common law, the Act modifies the criteria for the awarding of damages in civil negligence cases. Insofar as professional negligence is concerned, the Act provides that, subject to exceptions:
A person practising a profession (‘a professional’) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent practice (section 5O).
Section 57 of the Civil Liability Act protects ‘good samaritans’ from personal civil liability in respect of their acts or omissions in providing emergency assistance to an injured person or a person at risk of being injured. This protection from liability does not extend to where the good samaritan’s ability to exercise reasonable care and skill was impaired due to being under the influence of drugs or alcohol or when the good samaritan is impersonating a healthcare or emergency services worker or a police officer. The New South Wales Health Care Liability Act 2001 makes provision with respect to the recovery of damages for injury or death caused by medical practitioners and other healthcare providers and makes professional indemnity compulsory for medical practitioners.
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