Leadership, the law and management of nursing practice

CHAPTER SEVEN Leadership, the law and management of nursing practice



Kim Forrester



LEARNING OBJECTIVES


At the completion of this chapter, the reader will be able to:


image identify the sources of the law and the hierarchy of the courts;

image identify and describe the elements of an action in negligence and the requirements necessary for a valid consent;

image identify legislative options available to redress discrimination or harassment in the workplace;

image understand the obligations imposed under the occupational health and safety legislation; and

image understand the significance of documentation and the obligation of confidentiality.


KEY WORDS


jurisdiction


negligence


consent


workplace health and safety


confidentiality



INTRODUCTION


The law is a ‘man-made’ set of rules that control not only what we are compelled to do, but also what we are prohibited from doing. As an example, the law controls contractual arrangements in purchasing good and services, our working conditions and rates of pay; it requires the registration of marriages, births and deaths; it determines how, and at what speed we drive, when and where we can consume alcohol, where we can walk our dogs, dispose of our rubbish, send our children to school, make loud noise and park our car. These are but a few examples of how the law in a very real way regulates the society in which we live and work. In the health care context, the laws control and regulate the boundaries of our practice (for example, who is legally capable of prescribing medications), the standard of our practice (which is enforced through legal actions such as negligence and trespass to the person), and the employment relationships into which we enter (through enterprise agreements or industrial awards). Clearly, in making decisions about how health professionals care for others, they are required to consider the relevant legal principles and the legislative provisions.


Health professionals employed in leadership and management roles are frequently required to have an in-depth knowledge of the legal responsibilities and obligations that attach to their particular level of employment. It will frequently be the case that those in leadership positions will be required to make significant decisions on behalf of either the employing institution, or those they manage or supervise. Regardless of the particular clinical context, the expectation is that when health professionals place themselves in positions of leadership they will have a broad knowledge of the legislative and common law requirements necessary to ensure a safe and appropriate environment for the delivery of health care services. Though many areas of the law impact either directly or indirectly on the day-to-day practices of all heath professionals, the following will address the major legal issues relevant to nursing practice.



LEGAL ISSUES AND CONCEPTS



Sources of the law


An in-depth discussion of the history of the Australian legal system is beyond the scope of this chapter; however, it is important that nurses have an understanding of the relevant legal concepts and structures. The Australian legal system was initially inherited from the British as a function of colonisation. Until federation in 1901, each of the colonies operated as an individual entity with its own constitution, parliament and courts. Upon federation, however, the six States and two Territories joined to form the Commonwealth of Australia, thereby incorporating into the sources of the law not only the State and Territory parliaments and courts, but also legislation passed through the Commonwealth Parliament and the decisions from courts within the federal jurisdiction.



Legislation


Legislation, statutes or Acts, are the names given to laws enacted through the parliamentary process. State and Territory parliaments, and the Commonwealth Parliament, pass legislation which, in addition to directing and influencing other areas of Australian life, impacts significantly on the provision of health care services. While an Act of Parliament is a primary source of law and therefore takes priority over decisions from the courts, it may also be open to interpretation by judges as part of legal proceedings. That is, particular sections of an Act may require interpretation by the court and, therefore, those interpretations become relevant as to how the Act will be read and applied in the future. In some jurisdictions, however, the law may be codified. This means that the code itself is a complete statement of the law in that particular area. For example, in Queensland, the criminal law is codified into the Criminal Code 1995 (Qld). The Criminal Code 1995 (Qld) therefore contains all the laws relevant to the offences created by the code.


The Australian Constitution allows for both the Commonwealth and State parliaments to pass laws on the same area. These are referred to as ‘concurrent powers’. However, should there be an inconsistency between the two pieces of legislation, the Commonwealth legislation prevails to the extent of that inconsistency.1


Legislation may also provide for the delegation of power to a specified person or body, to make rules, regulations, by-laws or ordinances that are consistent with the Act. This is referred to as delegated legislation and facilitates the practical application of the provisions of the Act. As an example, most professional regulatory authorities have the delegated power to make regulations that detail more precisely their administrative or disciplinary processes. The obligations and rights contained in delegated legislation are as binding as those contained in the parent Act. However, it must be remembered that they are to be interpreted in conjunction with the content of the Act in total and have no force standing alone.


There are many pieces of legislation at both State and Federal levels that apply to, and control, the practice of nurses and the provision of health care services. Nurses must be familiar with legislation that applies within their jurisdiction and be aware that it may differ from the laws as they apply elsewhere.



Common law


Common law is judge-made law. It is the accumulation of legal principles contained n individual judgements that are applied in similar cases that come before the courts. Where cases of comparable circumstances come to court for determination, judges are bound to follow their own decisions or the decisions of courts at the same level or a superior level in the hierarchy. The basic premise is that if a court determines a matter in a particular way today then a similar case should be interpreted in the same way tomorrow.2 This is the doctrine of precedent, whereby the recording of judicial decisions over many centuries provides a level of certainty and predictability in the legal system. The largest body of case law relevant in a health care context is that pertaining to civil actions in negligence. There being no legislation on this area of health law, nurses must become familiar with the relevant case law to gain an understanding of the principles that guide their practice. For example, the answers to the questions of: ‘To whom do I owe a duty of care?’ or ‘What conduct amounts to a breach of the duty of care?’ are to be found in the decisions of judges who have determined these issues in cases that have come before them.



Court hierarchy


The Australian court hierarchy exists at both the State and Commonwealth levels. That is, within the individual States and Territories there is a hierarchy of courts extending from the lower courts, commonly referred to as Local Courts, Magistrates Courts or Courts of Summary Jurisdiction, through to the District or County Courts, Supreme Court and the Full Court, or Court of Appeal of the Supreme Court. The courts outside the State and Territory systems include the Family Courts, Federal Courts and the High Court of Australia. The courts, through their respective legislation, are empowered to hear and determine certain types of cases, and make certain determinations as to penalties and amounts of compensation. This is referred to as the jurisdiction of the court. Should a person be involved in legal proceedings, the type of case and the outcome sought determines which of the courts they would attend. The Australian High Court has the jurisdiction to hear matters involving the interpretation of the Constitution of the Commonwealth of Australia, disputes between States and the Commonwealth and disputes between residents of different States. The High Court may also hear and determine matters on appeal from other courts in the hierarchy. However, this appellate jurisdiction is only available with leave (or permission) from the High Court.


The development of health law within the Australian legal system is based, to a large extent, on the recognition of the rights of the patient, or client, their family and significant others. The following discussion, therefore, is directed to providing information on the common law and legislation that frame the provision of nursing services. It is important to recognise that the scope of the chapter does not permit an extensive examination of all relevant areas of health law. Therefore, a list of recommended readings is provided at the conclusion of the chapter.



CONSUMER RIGHTS


Patients and clients, as the consumers of health care services, have rights and obligations associated with that status. Wallace defines a ‘right’ as being an entitlement or benefit belonging to a particular person which is recognised by society and can be demanded from others.3 While there is no formal, nationally recognised ‘Bill of Rights’ for patients or clients, many individual health care institutions, organisations and government agencies have developed statements of consumer rights4 that operate in relation to those individuals, and families, under their care. These documents often contain a combination of legally enforceable rights, rights developed through common practices and rights that arise from the goals and aims of the particular institution or group. It is appropriate, therefore, to consider the broad categories of rights that attach to the receipt of health care services by health care consumers.


On the international stage, Australia is a signatory to a number of Declarations, Treaties and Conventions recognising the basic rights of human beings.5 These include the right of each person to physical security, self-fulfilment, to be treated with dignity and have access to justice. While an individual is unable to pursue a legal action in an Australian court in relation to these rights, they underpin and guide domestic laws. In relation to the rights of consumers of health care in Australia, these are derived from the International Covenant on Civil and Political Rights, the International Covenant on Social, Economic and Cultural Rights, the Declaration of the Rights of the Child, the Convention on the Rights of the Child, the Declaration on the Rights of Mentally Retarded Persons, and the Principles for the Protection of Persons with Mental Illnesses and for the Improvement of Mental Health Care.6


Within the Australian legal system, legislation and common law decisions create the following rights within a health care context that are enforceable by law:


image The right to reasonable care.

image The right not to be abandoned.

image The right to prompt treatment.

image The right to be informed of the treatment options.

image The right to confidentiality.

image The right to access their medical files.

image The right not to be discriminated against.

image The right to lodge a complaint.

image The right to refuse treatment.

These rights are protected through specific legislation or legal principles and therefore impose on nurses, and other health care providers, obligations as to how services required by consumers are to be met. As an example, the right of the patient to reasonable care is protected by the civil action in negligence. The right of the patient or client to be informed of treatment options is enforced not only through the common law actions of trespass to the person (civil assault), but also through legislation such as the Disability Services Act 1986 (Cth). Legislation at both the State and Federal levels protect patients and clients from being discriminated against in the provision of health care services,7 and legislation in all jurisdictions provides for the lodgement of complaints in relation to the provision of health care services to consumers.8


In addition to the above, there are rights that have been established by common practice that include, among others:


image The right to access qualified professionals.

image The right to a second opinion.

image The right to an interpreter.

image The right to know the costs of services.

image The right to know the available services.

image The right to privacy.

image The right to seek legal advice.

While litigation, in response to a breach of a legally recognised right, is an option, onsumers of health care services may also choose to pursue an alternative means by which to resolve their complaints. All Australian States and Territories have established health consumer complaint mechanisms as part of the national Medicare funding arrangement. These are independent statutory bodies9 that have the power to assess, investigate, conciliate and report complaints related to the provision of health services as determined by the legislation in the relevant jurisdiction. As an example, under the Health Rights Commission Act 1992 (Qld), the Health Rights Commission was established with the mandate to investigate complaints and increase the quality of health care services in Queensland. Complaints to the Health Rights Commission come from the consumers of health care services (this could be the patient or their relatives) or from the professional regulatory authorities (for example, the Queensland Nursing Council). For the period 2000–01, the Queensland Health Rights Commission received 2520 complaints in relation to the provision of health care services. Of those, 938 were related to the provision of medical services, seven in relation to nursing services, and 781 in relation to services provided by public hospitals.10



NEGLIGENCE


Negligence is a civil action in which one person (the plaintiff) sues another person (the defendant), seeking compensation for injuries they have sustained as a result of what they allege has been negligent conduct. The concept of ‘person’ may include not only an individual citizen but also a company or government department. In the health care context, a negligence action is most frequently initiated by a patient, or their relatives, against a health care professional or health care facility. As an example, the patient may allege that the nurse was negligent in administering an incorrect dose of a medication which resulted in the patient sustaining an injury. The elements of a negligence action are as follows:


image duty of care;

image breach of the duty of care;

image damage; and

image causation.

The plaintiff must prove each one of the elements on the ‘balance of probabilities’. The failure to do so in relation to any one of the above elements will result in the failure of the action. Therefore, the patient or client will be required to prove, on the ‘balance of probabilities’, that the nurse owed them a duty of care, that the nurse conducted themselves in a manner that amounted to the breach of the duty and that as a result, the patient sustained damage. It is appropriate to discuss each of these concepts in more depth.



Duty of care


Where a person is responsible for the care of others they will owe those individuals a duty of care. This ‘duty’ exists in relation to those whom they can reasonably foresee are likely to be injured by what they do or do not do. In the health care context, therefore, the nurse will owe a duty of care to all those patients or clients he or she is able to reasonably foresee as likely to be injured by what the nurse does, or does not do, while undertaking their care. At law, such a patient or client is considered to be the nurse’s ‘neighbour’,11 and to such a person they have a legally recognised relationship, which gives rise to the ability to sue. The nature and extent of the health professional’s duty of care to a patient or client is ‘a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgement: it extends to the examination, diagnosis and treatment of the patient and the provision of information in the appropriate case’.12 Though this quote from the High Court refers to ‘doctors’, it can be taken to apply to all health professionals working within the health care sector. Where there is no such relationship, there will be no duty of care. However, the New South Wales cases of Lowns v Wood13 and BT (as Administratix of the Estate of the Late AT) v Oei14 are examples of the development and expansion of the legal interpretation of the relationship.


Health care institutions, in holding themselves out to the public as the providers of health care services, have a ‘non-delegable’ duty of care to the health care consumer. This duty is not able to be delegated to the employee and is resultant upon the relationship which exists between the patient and the institution.15 The duty imposes on the institution the obligation to provide, as an example, adequate numbers of appropriately trained staff, safe plant and equipment and uncontaminated products. This duty is separate from the legal position of the employer as being vicariously liable for an employee who negligently injures a patient during the course and scope of their employment.



Breach of the duty of care


For a nurse to be held liable in a negligence action the plaintiff must prove that the nurse’s conduct fell below that considered as reasonable. This is an objective standard and is distinct from the standard that applies in everyday life. As a person becomes more skilled, so the assessment of what amounts to reasonable conduct changes. The standard of care for a health professional has been identified by the High Court of Australia in Rogers v Whitaker16 as:



The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill …

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Dec 10, 2016 | Posted by in NURSING | Comments Off on Leadership, the law and management of nursing practice

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