ACTS OF PARLIAMENT

There are, in each Australian state and territory, various Acts, which are laws created by a Parliament. Acts of Parliament are commonly referred to as legislation and are often accompanied by Regulations that give directions to be followed to comply with the intent of the Act. As the Acts vary from state to state and territory, nurses are advised to become familiar with the specific Acts relevant to their place of nursing practice. Some examples of these Acts are outlined in Clinical Interest Box 3.2.

THE EMPLOYER

An employer, such as the board of management of a hospital, is legally responsible for the acts committed by all employees in the course of their duty. This principle of vicarious liability is relevant to all nurses, as it renders an employer liable for an employee’s actions committed in the course of employment. While the employer is held liable, they do have the right to seek a total financial indemnity from the offending employee, for example in the case of negligence. An employer must ensure that:

The legal liability of the employer does not absolve a nurse from individual responsibility, and legal action can be taken against a hospital and a nurse or against a nurse as an individual.

NURSING REGULATION

Because the control and regulation of the nursing profession in Australia is determined on a state and territory basis, each Australian state and territory has its own Nurses Act or Health Professions Registration Act and Regulations. There is a Nurses Board or Nurses Council in each of the states and territories, composed of members empowered to both register and deregister nurses. Each state or territory Act is divided into sections, each one of which deals with a specific aspect concerning registration. As each state and territory has its own Act, it is essential that nurses read a copy of the relevant legislation so that they are aware of individual state and/or territory requirements. The Nursing Council of New Zealand is responsible for the registration of all categories of New Zealand nurses.

Some states and territories now have a separate register for midwives, as new education programs mean that in some jurisdictions it is possible to become a midwife by direct entry through an undergraduate degree in midwifery. In addition, all states and territories have now enacted legislation to enable the title ‘nurse practitioner’ to be protected (Staunton & Chiarella 2008).

By defining the terms under which a nurse may practise in each of the categories of registration, the law protects the community by deeming the nurse who has qualified to be safe and competent to practise nursing. Nurses who do not fulfil the requirements of the relevant Nurses or Health Professions Registration Act may not practise as nurses. Currently, a practising certificate or renewal of registration must be obtained from the Nurses Board in each state or territory annually by a person who is registered or enrolled and intends to practise in any branch of nursing. The responsibility for ensuring that registration or enrolment fees are paid each year rests with the individual nurse.

Each state or territory registration body and the Nursing Council of New Zealand is empowered to deregister nurses in certain circumstances; for example, a nurse’s registration or enrolment may be cancelled if they unlawfully use a registration number or if they are found guilty of misconduct or negligence in a professional respect.

CONTRACTS

A contract is an agreement between parties that is legally enforceable because of mutuality of agreement and obligation. A contract gives rise to rights and obligations that are protected and enforced by the law. A contract may be in writing or it may arise by implication, such as the agreement that is reached between a client and a health care agency to which they are admitted. While the client is not required to sign a document, they will have entered into a contract as to the nature and extent of their proposed treatment. Private clients enter into a contract with their medical officer.

The nurse, as an employee, enters into a contract with the employer. Arising out of this contractual relationship are certain rights and obligations relevant to both the employee and the employer, as defined in a written contract of employment. The creation of industrial awards has imposed specific provisions on employers relating to the health and safety of employees, the payment of wages and the provision of certain conditions. An industrial award is a document that sets out the wages and conditions of a particular group of employees and represents the contract of employment between the employer and the employee. A copy of each award can be obtained from the Department of Industrial Relations. Employers are required to have copies of the relevant awards available so that they are accessible to employees. Nurses have a responsibility to themselves to understand their contract of employment and their industrial award.

Nurses engaged through nursing agencies are under contract to the health agency to which they have agreed to be allocated, on starting each work shift. A nursing agency is only an employment agency even though the nurse’s pay may be processed through them.

STANDARDS OF CARE

Standards of care are the guidelines by which a nurse should practise and are determined by Nurses Registration Boards or Nursing Councils, professional organisations such as the Australian Nursing and Midwifery Council (ANMC), The Royal College of Nursing Australia (RCNA) and the employing health care agency.

Each source defines standards of nursing care; for example, a Nurses Board defines the scope of nursing practice; professional organisations develop standards for nursing services in policy statements, and the employing health care agency develops written policies and protocols that detail how nurses are to perform their duties. Australian nurses are also required to adhere to the Code of Professional Conduct for Nurses in Australia (ANMC 2003, see Online Resources at the end of this chapter).

Nurses have a responsibility to know the standards of care they are expected to meet and to understand the importance of not undertaking tasks outside their defined role and function.

NEGLIGENCE

Negligence, in a legal sense, describes conduct that falls below the standard required by law. If a nurse gives care that does not meet accepted standards, the nurse may be held liable for negligence; for example, if the nurse’s actions result in harm to a client. Like other health professionals, nurses have a duty of care to their clients and, generally, negligence means failure by a nurse to take appropriate actions to protect the safety of a client or resident. This may involve failing to do something that should have been done, or doing something that should not have been done. Examples of negligent acts that have occurred include incorrect administration of medications (e.g. the wrong medication being administered), failure to communicate important information about a client’s condition, and failing to take appropriate measures so that a client has consequently sustained an injury (e.g. by falling out of bed).

A plaintiff must prove three elements to succeed in an action for negligence:

The likelihood of injury to a client, and the risk of liability, is reduced when the nurse adheres to the principles of sound nursing practice and follows the established policies relating to standards of care. Clinical Interest Box 3.3 lists examples of nursing care errors that may result in negligence claims.

CLINICAL INTEREST BOX 3.3 Categories of negligence that result in malpractice

Failure to follow standards of care, including failure to:

• Perform a complete admission assessment or design a plan of care

• Adhere to standardised protocols or institutional policies and procedures (e.g. using an improper injection site)

• Follow medical officer’s verbal or written orders.

Failure to use equipment in a responsible manner, including failure to:

• Follow the manufacturer’s recommendations for operating the equipment

• Check equipment for safety prior to use

• Place equipment properly during treatment

• Learn how equipment functions.

Failure to communicate, including failure to:

• Notify a medical officer in a timely manner when conditions warrant it

• Listen to a client’s complaints and act on them

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