Chapter 3 LEGAL AND ETHICAL ASPECTS OF NURSING PRACTICE

KEY TERMS/CONCEPTS

accountability

advocacy

criminal and civil law

ethical standards

legal liability

legal responsibilities of nursing students

legislation and regulations

The aim of this chapter is to introduce the Enrolled Nurse (EN) to some legal and ethical concepts that are relevant to the practice of nursing. While the concepts of nursing ethics are generally universal, the nurse needs to be aware that the law is different between countries and can be different between states and territories. Where the nurse resides and practises determines the legal knowledge required. Further reading on these matters is necessary for safe and competent practice.

LIVED EXPERIENCE

When we were studying the legal and ethical aspects of nursing practice I began to realise that nursing is a highly responsible job, and started to worry about what could happen if I did something wrong in the clinical field. It became clear though in the lectures that, as nurses, we work in situations that give us a privilege in working with individuals, including care of their physical and emotional needs. The laws define the boundaries of that privilege and make clear what nurses’ rights and responsibilities are. I kept thinking that as long as I keep this in mind and follow these, then I would always be giving the clients I was caring for the best care within my scope of practice.

Joe, Enrolled Nurse student

LEGAL ASPECTS OF NURSING PRACTICE

In a democratic society the legal system provides a framework inside which all sections of the community interact. It establishes the rights and privileges of the individual and makes provision for enforcement of rights and redress for wrongs suffered. All citizens should be aware of their legally defined rights and responsibilities, and should have an understanding of the laws that govern their personal and professional lives. Ignorance of a law is not accepted as an excuse for violation of that law.

Nurses have legal responsibilities common to all members of the community, and also the responsibilities imposed by the nature of their work, which may be defined as responsibilities in respect of:

• The provision of safe effective nursing care

• The health of the community

• The employing authority

• The nursing profession.

The functions of the law in nursing are summarised in Clinical Interest Box 3.1.

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.

Common Law

The common law is the body of law made by judges as a result of decisions in cases that come before the courts. These decisions form precedents (principles of law) and can then be applied in like cases. This body of law is often referred to as judge-made law and is equally as important as Parliamentary-made law. Some examples include the law of consent, and the law of assault and battery.

Types of law

It is important to be aware of the distinctions between criminal and civil law. Criminal laws are concerned with offences against people and their property. The government has the power to make rules as to what constitutes minimum levels of acceptable behaviour and then seeks to control behaviour through the power of the police force by ensuring that those rules are obeyed. A violation of a criminal law is called a crime, and it is sanctioned by some form of punishment, such as payment of a fine or imprisonment. Murder, robbery, rape and kidnapping are examples of crimes regarded as offences against society as a whole.

Civil laws are concerned with the relationships between people. Such laws provide the means by which rights can be enforced and wrongs can be remedied. For example, a person found to have broken the civil law will usually be required to pay a sum of money to the person alleging personal or property loss or damage. Areas of civil law include trespass, contracts and negligence.

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:

• Employees possess the required qualifications, registration and level of competence

• All legal requirements are met, including valid contracts of employment

• Safety standards are observed in relation to standards of patient care, buildings and equipment.

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.

AREAS OF LEGAL LIABILITY IN NURSING

The nurse has a responsibility to be aware of certain legal principles, specifically in relation to:

• Assault and battery

• Informed consent

• Confidentiality

• Documentation; for example, of incident reports

• Acts; for example, their relevant Nurses Act

• Witnessing wills

• Coroner’s court.

It is important for nurses to realise that they are legally responsible for their own actions and that, although the EN works under the supervision of a Registered Nurse (RN), this does not relieve them of personal liability. Nurses have a responsibility, to themselves and their clients, to refuse to perform an activity if:

• They are asked to do something that is beyond the legal and professional scope of his or her role

• They have not been prepared to perform a function safely

• Directions are unclear, unethical, illegal or against the policies of the health care agency.

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:

1. That the defendant owed the plaintiff a duty of care

2. That this duty of care was breached by failure to conform to the appropriate standard of care

3. That the plaintiff suffered injury as a result of the breach of duty. In this regard there must be a reasonably close causal connection between the defendant’s conduct and the injury or damage to the plaintiff.

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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Feb 12, 2017 | Posted by admin in NURSING | Comments Off

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LEGAL AND ETHICAL ASPECTS OF NURSING PRACTICE

LEGAL ASPECTS OF NURSING PRACTICE

ACTS OF PARLIAMENT

Common Law

Types of law

THE EMPLOYER

NURSING REGULATION

AREAS OF LEGAL LIABILITY IN NURSING

CONTRACTS

STANDARDS OF CARE

NEGLIGENCE

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