The role of the nurse is the subject of constant evolution. Today, nurses perform tasks that would in the past have been undertaken by doctors, an initiative encouraged by the government (NHS Executive 2000). Many nurses are developing their practice to become clinical nurse specialists, emergency care practitioners and nurse prescribers. At the same time the nurse–doctor dynamic has been changing. There are new models of collaboration and of cooperation (Davies 2000, Salvage & Swift 2000). Further challenges face nurses from the fast-changing nature of health-care provision (Norris 2006). Modern electronic technologies are already transforming health-care delivery. The development of genetic technology has incredible potential but also gives rise to new dilemmas such as enhanced genetic screening and the development of personalised medicines. Demographic changes such as the rising number of older people in the population will give rise to new challenges for health-care provision in a community setting.
At the same time, nurses are also being encouraged to act as advocates for their patients, to safeguard standards of care and to speak out where those standards may be at risk. Such an expanded role is accompanied by enhanced responsibilities, and some considerable debate and indeed controversy (see Ch. 4). In recent years, legal issues in relation to the nurse’s role have never been far from the headlines: ‘Nurse performs operation’; ‘Nurse blows the whistle on poor standards of care’; ‘Nurses to prescribe drugs’. Many nurses have expressed concern regarding their legal obligations at a time when the structure of health-care provision and their own role within it is subject to such shifting dynamics.
The legal environment affects nurses in many ways, from the law of negligence concerning breaches of the legal duty of care to patients and others to the nursing professions’ governing body, the Nursing and Midwifery Council. Aside from the specific issues concerning nursing practice, the last few years in health care have been characterised by controversy and resultant considerable legal change. Major inquiries were instigated into events at Bristol Royal Infirmary and the deaths in the cardiac paediatric unit at that hospital (Department of Health 2001). Controversy was further generated by the revelation of the unauthorised retention of human material at hospitals up and down the country, leading notably to the ‘Alder Hey’ inquiry (Redfern 2000). These inquiries led both to legislation in relation to clinical governance and also to new legislation regulating the use of human material. The courts have been faced with many issues relating to health-care practice, from the decision to withdraw treatment from patients in persistent vegetative state, to consent to treatment from negligence actions brought when patients have suffered harm during operations, to whether to sanction assisted suicide in the case of the terminally ill patient.
The structure of health-care provision has been affected by legislation, and the pace of change of law in this area has been rapid. Recent developments considered in this book include the expansion of nurse prescribing, the changes to the law concerning the use of tissue and organs in the Human Tissue Act 2004 and the new statutory decision-making framework for adults lacking mental capacity under the Mental Capacity Act 2005. There has been an increase in the number of negligence actions brought against health-care practitioners. The scope of liability in negligence is considered below. Accompanying this has been the development of risk management practices aimed at reducing the prospect of litigation.
This book attempts to provide nurses with an account of their legal obligations, whether studying law as part of a diploma or degree course or as a busy practitioner seeking clarification of her or his legal position. This is a book on nursing law written by lawyers for nurses. Although many ethical issues do arise in relation to the health-care law matters in this book, the ethical debate is not addressed specifically; for that the reader is referred to the many health-care ethics texts available (e.g. Tingle & Cribb 2000). While it illustrates some of the legal dilemmas that arise, this book should not be seen as a substitute for the need to obtain specialist legal advice if particular problems occur.
This introductory chapter considers the framework of law and regulation within which the nurse practices. First, the structure of the English legal system and the nature of law, legal proceedings and the court system are considered, then the structure of the National Health Service (NHS) and finally the role of the nurse in relation to her or his professional body. The professional obligations of the nurse have been affected by recent guidance upon the scope of the nurse’s professional practice. This guidance is considered in detail in this book and reproduced in the appendices.
LAW AND THE LEGAL SYSTEM
Types of law
The legal system is divided into two main branches: criminal and civil law. Criminal law is a system for the state punishment of offences. In a criminal law case the action is usually brought by the Crown against the defendant. An individual may bring a private prosecution, but in practice these are very rare. A criminal law case is referred to as Regina versus Smith, which means the Crown against Smith or, as it is usually written, R v. Smith.
Civil law is the term given to an action brought by a person who has suffered some harm or loss – known as the claimant (after 1 April 1999; before this date they were referred to as the ‘plaintiff’) – against another person or organisation – the defendant. A civil law case is normally referred to as Bloggs v. Smith. The types of civil law action with which the nurse is most likely to be concerned are claims for breach of contract and actions in ‘tort’. A tort is a civil wrong. Examples of torts include undertaking surgery without obtaining any form of consent from the patient (a battery) and failing to monitor oxygen levels during an operation with the patient as a consequence suffering brain damage (negligence). Other civil law actions include the action for breach of confidence in which the patient claims that there has been unauthorised disclosure of confidential information entrusted to another in confidence. In civil law actions the claimant seeks a remedy, usually in the form of financial compensation – damages. In addition, s/he may claim an ‘injunction’ to stop a particular type of conduct. An injunction is an order stopping the party performing the unjustified act. A contract is a legally enforceable promise, enforceable because both parties have given something of value. Examples include contracts of employment and contracts for sale of goods.
Public law
In some situations a person may want to challenge a decision of a government body, NHS trust or other public body. S/he may claim that the body went beyond powers given to it by statute or that it has wrongly exercised a discretion granted under statute. Claims against public bodies in such situations should usually be brought through a special procedure known as ‘judicial review’. Judicial review is not an appeal: the court cannot substitute its own view as to how the public body should have behaved. Instead, the court determines whether the public body has acted legally.
A number of special remedies are available against public authorities through judicial review. An action can be brought seeking a ‘declaration’ from the court – asking the court to declare the law on a specific point. So for example, in Gillick v. West Norfolk and Wisbech AHA ([1986] 1 AC 112), Mrs Victoria Gillick went to court to ask for a declaration as to whether guidance given to health authorities that doctors could give contraceptive advice and treatment to girls under 16 years of age without parental consent was lawful. The court also has the power to grant a number of statutory orders, the mandatory order, the quashing order and the prohibiting order (Civil Procedure Modification of Supreme Court Act 1981 Order 2004; S1 2004, 1133). These are discretionary orders.
The nurse in the courtroom
When is the nurse likely to appear in court? S/he may be a party to an action; so, for example, the nurse may be a claimant in a civil claim bringing an action for damages against her or his employer on the grounds of the employer’s negligence. In a claim brought by a patient, the nurse may be called to give evidence; this may be as to what the nurse saw happen to a patient claiming that s/he was given negligent treatment. In addition, the nurse may be called to give expert evidence, for example in a negligence action as to the standard of practice that would be expected of a responsible nursing professional in that situation (see below).
Criminal courts
The magistrates court is a local court. Magistrates try minor criminal offences. In addition, they hear evidence in relation to more serious criminal offences before committing these cases for trial at the Crown Court. In the Crown Court cases are heard by a judge, usually sitting with a jury of 12 lay persons selected at random from persons drawn from the electoral register in the local community.
Civil courts
The court in which a civil law case is heard usually depends upon the amount of damages claimed, which relates to the degree of harm caused and to the complexity of the case, as we shall see below. Use of juries in civil cases is very rare today, the most notable exception is that of libel cases. The whole civil justice system was subject to radical reform in 1999 following the report of Lord Woolf (Woolf 1996).
Court structure – the upper courts
High Court
There are three divisions of the High Court: the Chancery and Family Divisions hear exclusively civil law matters; and the Queen’s Bench Division hears criminal law and public law matters. Each division is headed by a senior judge: in the case of the Chancery Division, the Vice-Chancellor, in the case of the Family Division, the President, and the Lord Chief Justice for the Queen’s Bench Division. These judges also sit in the Court of Appeal. The High Court may hear cases taken on appeal from the lower courts. Alternatively, cases may be heard for the first time in the High Courts. As noted above, such cases would include serious negligence cases.
Court of Appeal
Above the High Court is the Court of Appeal. This is composed of senior judges known as Lord Justices of Appeal. It hears appeals in both civil and criminal cases. The civil division is headed by the Master of the Rolls, the criminal division by the Lord Chief Justice.
House of Lords
The highest court within the United Kingdom is the House of Lords. It is composed of senior judges known as Law Lords. The Lord Chancellor presides over the House of Lords. He is a political appointment and also is a member of the Cabinet. This court bears the same name as the second chamber of Parliament, the House of Lords. Peers who have a right to sit in the House of Lords do not have the right to sit as judges in the court, but the Law Lords may participate in parliamentary debates.
The legal system has long been criticised for its antiquated procedure, delays and use of complex language. In 1995 Lord Woolf was given the task of looking at the operation of the civil procedure rules. This led, however, to a wide-ranging enquiry into the operation of the civil justice system itself. Lord Woolf recommended that the civil justice system should:
The government accepted the majority of Lord Woolf’s recommendations and these were implemented with the bulk of the reforms becoming operational on 1 April 2000.
• Be just in results delivered
• Be fair in the way in which litigants are treated
• Offer appropriate procedures at reasonable cost
• Deal with cases at reasonable speed
• Be understandable to those who need it
• Be responsive to the needs of those who use it
• Provide as much certainty as the particular case allows
• Be effective/adequately resourced/organised.
A new body, the Civil Justice Council, was created with the task of keeping civil justice under review. It considers how to make the civil justice system more accessible, fair and efficient. It advises the Lord Chancellor and the judiciary on the development of the civil justice system, and refers proposals for changes in the civil justice system to the Lord Chancellor and the Civil Procedure Rules Committee. It also makes proposals for research. New civil procedure rules were brought into operation alongside practice directions, forms and protocols (Civil Procedure Act 1997) such as the pre-action protocol for the resolution of clinical disputes. As a result of the reforms the use of legal language has been considerably amended. For example the word ‘plaintiff’ was replaced by the term ‘claimant’.
Using alternative dispute resolution
Parties are encouraged to resolve their differences through the use of alternative dispute resolution mechanisms. There is a new power to stay (or halt) proceedings pending the parties being referred to alternative dispute resolution (Civil Procedure Rules, rule 1.4. (2) (e)). This has the aim of removing many issues from the scope of the courtroom and to encourage parties to resolve their differences. The aim of the hearing is that matters are dealt with ‘justly’. According to rule 1 (1) (2) of the Civil Procedure Rules:
“Dealing with a case justly includes, so far as is practicable –
a. Ensuring that the parties are on an equal footing
b. Saving expense
c. Dealing with the case in ways which are proportionate –
d to the amount of money involved
e. to the importance of the case
g. to the financial position of each party.
h. ensuring that it is dealt with expeditiously and fairly; and
i. allotting to it an appropriate share of the Court’s resources while taking into account the need to allot resources to other cases.
The division of civil litigation
Civil proceedings today fall into three broad categories. The first is the ‘small claims’ track. There is a limit of £5000 on such cases and of £1000 in personal injury cases. These cases are allocated to what were known as the ‘small claims’ courts. This referred to the procedure used in county courts for claims of low value. Cases regarded as suitable for such hearings are consumer disputes, accident claims, disputes regarding the ownership of goods and most landlord and tenant disputes other than those for possession. Secondly, there is what is known as the ‘fast-track’, where there is a limit of cases of value of up to £15 000. Such cases will usually be heard in the county court. Here claims will be subject to a fixed timetable, judicial monitoring and only limited use of oral evidence. Failure to comply with case management directions will be the subject of sanctions. Cases involving claims of larger value- and of greater complexity are dealt with under the ‘multi-track’, where these are cases not on another track (CPR rule 26. 6 (6)). Here there is greater flexibility given to the court in the way in which a case will be managed appropriate to the particular needs of that case. A major feature of the reforms is the role of the procedural judge in ‘managing’ the case – guiding the proceedings through the court (CPR part 3). Timetables are used and costs controlled. Failure to comply with the rules/protocols may result in the parties being subject to sanctions so, for example, the defence may be struck out or this may have an impact upon the costs to be awarded.
Medical negligence litigation and Woolf – some specific issues
In chapter 15 of his report Lord Woolf directed considerable attention to medical negligence litigation (Woolf 1996). The report identified a number of problems in such litigation. There was disproportion between the costs awarded and the damages given. In many instances there were unacceptable delays in resolving cases. The success rate was lower in medical negligence actions than in other personal injury cases. The report also commented that there was a perceived lack of trust and openness between health-care professionals and patients and that doctors/hospitals were traditionally unwilling to admit negligence.
Lord Woolf believed that patients had a number of aims. They wanted impartial information and advice, including independent medical assessment. They also wanted fair compensation for losses suffered. Patients also wanted the dispute to be resolved quickly by fair and independent adjudication and (sometimes) a day in court. Health-care professionals also wanted speedy resolution and discreet (private) adjudication. They wanted an expert of their own/solicitor’s choice. They also wanted an economical system that did not encourage trusts to settle disputes over their heads regardless of liability. Lord Woolf considered the possibility of a new non-pecuniary remedy from the courts – a formal statement from the hospital explaining the incident of alleged negligence. The need for more open communication between the parties was emphasised in the report.
The Woolf Report and the subsequent civil justice reforms suggest that professionals and patients should adopt a constructive approach to com-plaints and claims. Guidance is now provided to the parties in the conduct of such cases through the operation of pre-action protocols and in particular the pre-action protocol for the resolution of clinical disputes. The aim of protocols is to maintain/restore the patient–health-care provider relationship and to resolve as many disputes as possible without litigation. Sufficient information should be disclosed by the parties to enable each of them to understand the other’s viewpoint. While the guidance in the protocols does not make specific reference to adverse outcome reporting it provides that health-care providers should have procedures in place for this. The role of clinical risk management is acknowledged in the pre-action protocol but is left as a matter for specific health authorities. It is suggested that clinical risk management systems should be established and also that health-care providers should ensure that key staff are trained in an appropriate manner with some knowledge of health-care law and of complaints procedures. Information regarding adverse incidents and complaints should be used in a positive manner. Patients should be advised as to an adverse outcome and should be given on request information on what actually happened and also information on other steps that could be taken.
Role of expert evidence
One of the major generators of costs in civil litigation which Woolf identified was in the use of expert evidence. (See Ch. 13 of the Woolf Report and also Ch. 15, paras 63 onwards.) The Woolf reforms are concerned to reduce the use of expert evidence to where it is necessary. Today, calling experts requires the permission of the court. There is great emphasis placed upon the use of written evidence. Where experts are to be called then experts from the opposing sides will be encouraged to meet prior to trial to identify the pertinent issues where consensus may be achieved and those issues where there is disagreement between the parties. In some areas there is provision for the use of a single expert, although in practice it appears to be the case that use of the single expert is unlikely in the majority of clinical negligence cases. This is because of the operation of the Bolam principle and the fact that the test for negligence is that of the responsible body of professional practice, which necessitates the calling of evidence regarding professional practice regarding that particular issue (see the discussion in Ch. 2). Nonetheless, the Woolf Report did identify various areas in clinical negligence actions where the use of a single expert might indeed be appropriate – for example:
It will be interesting to see how restrained parties become through judicial intervention in reducing the number of experts called before the courts.
• the assessment of quantum of damages such as future care costs
• in relation to those medical issues that are uncontroversial, such as the precise nature of a tumour
• in relation to such matters as condition and prognosis in straightforward claims
• on matters of liability in claims under £10 000.
Specialist courts/tribunals
In addition to the two main categories of court outlined above there are also a number of specialist courts dealing with issues such as family law or, in the case of coroners’ courts, examinations into unexplained deaths. Hundreds of different bodies known as tribunals hear matters ranging from unfair dismissal claims in the context of employment tribunals to immigration appeals. A tribunal chairperson is normally legally qualified. For instance, in employment tribunals the chairperson usually sits to decide the case along with two other persons; one person is drawn from an employers’ organisation and the other from a trade union. Tribunals are less formal than the courts, with more flexible procedures in relation to calling witnesses and hearing evidence. There is also no automatic right to legal representation or to legal aid.
Sources of law
There are a number of sources of law: first, Acts of Parliament (also known as statutes); second, case law (derived from cases decided in the courts of law). In addition, English law is in some situations governed by laws laid down in Europe through our participation in the European Union (see below, p. 10).
Statutes
English law is to be found in Acts of Parliament. There are many Acts of Parliament relevant to nursing practice, such as the Human Fertilisation and Embryology Act 1990 regulating infertility treatment, or the Abortion Act 1967. In addition, the nurse is affected by those statutes that apply more generally to the population as a whole, such as the Health and Safety at Work Act 1974. Statutes are being continually passed to govern new problems as they arise. A new statute may repeal an earlier statute, or it may amend it either in whole or in part. Statutes may also codify a particular area of law that was previously to be found in a large number of cases, or consolidate both earlier statute law and later case law in one statute.
To become an Act of Parliament, legislation must receive the approval of both Houses of Parliament (Lords and Commons) and it must also receive Royal Assent. A statute is presented to the House of Commons as a Bill. These take two forms. The first category involves Bills sponsored by the government, which will almost certainly result in legislation if the government has a majority. MPs are generally constrained to vote along party political lines. In addition, government-sponsored legislation is allocated a greater amount of parliamentary time. Alternatively, there may be Bills on which the government allows its supporters a free vote so that they can make their decision on a point of conscience. An example is the Abortion Act 1967. The second main category are Private Members’ Bills. These, as the name suggests, are Bills introduced into Parliament that do not have the sponsorship of the government. These Bills usually only become law if they have government support.
A statute may provide an outline of the legal position but then leave provisions to be defined by later secondary legislation known as ‘statutory instruments’. This enables the legislation to have a more rapid passage through Parliament. So, for example, the Human Tissue Act 2004 set down a regime for undertaking transplants from living organ donors, but the detailed procedure for undertaking those transplants is to be subject to subsequent statutory instruments (see further Ch. 10).
Government departments, such as the Department of Health, issue circulars. While such documents do not have the force of law, they may provide guidance as to what conduct constitutes accepted practice.
Statutory interpretation
A statute may state general legal obligations but where disputes later arise the statute will require interpretation. A court will examine the statute to see how it applies in a particular situation. A word or phrase within the statute may be ambiguous and require construction by the court. There are a number of rules of statutory interpretation that the court may apply. The court may look at the words of the statute and apply them literally. However, it is more likely that the court will construe a word or phrase in the light of the ‘purpose’ of the statute.
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