LEGAL ASPECTS OF EXPANDED ROLE
John Tingle
DEVELOPMENTS IN NURSING PRACTICE
Today the number of tasks undertaken by nurses has increased. This is related to a number of factors, ranging from resource issues such as the need to reduce junior doctors’ hours to the fact that nurses are being entrusted with wider responsibility as recognition of their role as independent practitioners. The government’s published strategy for nursing midwifery and health visiting contained in Making a Difference (Department of Health 1999b) is notable for its proactive stance on nurses taking on more advanced activities. The government would like nurses to extend their role and to make better use of their knowledge and skills. It also wants to make it easier for them to prescribe. The former Health Secretary Alan Milburn laid down a 10-point challenge on nursing skills to be implemented throughout the National Health Service (NHS). This included nurses being able to order diagnostic investigations, e.g. pathology tests and X-rays, make and receive referrals direct to, for example, therapists or pain consultants, run their own clinics, e.g. ophthalmology or dermatology, and take a lead in the way local health services are organised and run (Department of Health 2000a). The momentum for role expansion has been growing steadily for a number of years and it has been firmly taken forward and promoted by the government. The NHS Plan further promoted expanded roles (Department of Health 2000b) and Liberating the Talents (Department of Health 2003) described how ‘nurses with special interests’, i.e. with additional expertise, can be developed by primary care trusts to improve patient care and increase local primary care capacity. Advice for managers on developing key roles for nurses and midwives is provided by the Department of Health 2002.
Nurses now undertake activities such as electrocardiography, defibrillation after a heart attack, verification of death (not in cases of unexpected death), taking blood samples and performing male catheterisation (Eaton 1993). There are nurse-led minor injuries units (MIUs) where nurses carry out a variety of activities, which can include suturing, X-ray, plaster and refer (Carlisle 1995). There are also nurse endoscopists (United Kingdom Central Council 2000). The Department of Health and the Royal College of Nursing (2003) gave some further examples of expanded and advanced roles in their resource to nurses, therapists, health-care professionals, managers and directors to clarify what nurses and allied health professionals (AHPs) are allowed and able to do within their professional codes of conduct. It focuses on the patient journey, and brings together examples in practice that show how practitioners are working to speed up and improve the patient journey and experience by challenging myths.
The advice also provides practical factsheets about the legal and professional frameworks that support and develop professional practice and some good examples of expanded and advanced roles are given:
A contemporary view of nurses working in advanced and extended roles is provided in Department of Health and Royal College of Nursing 2005. This publication reports the findings of a joint Royal College of Nursing (RCN) and Department of Health survey to find out more about nurses working in advanced and extended roles and how proactive they are in developing the roles and services. A total of 758 nurses were asked about what their role entailed, what gave them most satisfaction and how their job fitted in with other nursing roles. Nearly 70% returned completed questionnaires. Survey key findings included that a nursing background is essential to undertake these roles; they are maxi nurses and not mini doctors. Nurses were found to be very positive about these new roles and keen for further role expansion. Nurses are leading multidisciplinary teams, working across organisational boundaries and coordinating packages of care. The roles are having a positive impact on the care of patients and the level of job satisfaction was high among post-holders. The roles create important career development opportunities that allow nurses to retain significant patient contact.
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• … GP referrals direct to nurse consultants
• extending the boundaries of pre-hospital care and admission avoidance
• Pre-hospital care and thrombolysis by paramedic staff or nurses
• Walk-in Centres providing early access for patients
• patient assessment and advice through NHS Direct and online
• extended out of hours services
• treatment at home or at scene, carried out by nurses or paramedics.
“Nurses and AHPs have expanded their practice to carry out clinical assessment of adults, children and young people with a range of clinical conditions and symptoms…
• see and treat and discharge with advice
• nurse-led ambulatory care services
• nurse-initiated thrombolysis
• nurse-led assessment
• use of Patient Group Directions (PGDs) to enable nurses to administer medication such as analgesia, anti-emetics.
“Nurses and AHPs with appropriate competencies are able to refer patients for tests and investigations as part of the clinical assessment. This does not always necessitate an additional course.
“Nurses and AHPs who have appropriate competencies can interpret test results and initiate treatment.
• … nurse-initiated X-rays
• nurse-initiated abdominal ultrasound, Doppler and ultrasound
• nurse-initiated computed tomography scan of head for head injuries
• nurses interpreting X-rays
• nurse-initiated interventions based on blood results.
EXPANDED ROLE: DEFINITIONAL ISSUES
The growth of the nurse’s work has been termed ‘expanded role’ by some commentators. In the past the term ‘extended role’ was used when discussing the issue of nurses carrying out activities traditionally carried out by doctors (Tingle 1993). The position altered, however, in 1992 (Department of Health 1992). This change followed a report issued by the Standing Medical Advisory Committee and the Standing Nursing and Midwifery Advisory Committee (1989). The United Kingdom Central Council for Nursing, Midwifery and
Health Visiting (UKCC) stated that the terms ‘extended’ or ‘extending roles’ are no longer favoured as they ‘limit, rather than extend the parameters of practice’ (United Kingdom Central Council 1992).
The Nursing and Midwifery Council code (2004a) Clause 6 now covers role expansion and incorporates guidance on enlarging the scope of a nurse’s practice previously published separately as the Scope of Professional Practice (United Kingdom Central Council 1992, p. 7), and provides:
6 As a registered nurse, midwife or specialist community public health nurse, you must maintain your professional knowledge and competence
6.1 You must keep your knowledge and skills up-to-date throughout your working life. In particular, you should take part regularly in learning activities that develop your competence and performance.
6.2 To practise competently, you must possess the knowledge, skills and abilities required for lawful, safe and effective practice without direct supervision. You must acknowledge the limits of your professional competence and only undertake practice and accept responsibilities for those activities in which you are competent.
6.3 If an aspect of practice is beyond your level of competence or outside your area of registration, you must obtain help and supervision from a competent practitioner until you and your employer consider that you have acquired the requisite knowledge and skill.
6.4 You have a duty to facilitate students of nursing, midwifery and specialist community public health nursing and others to develop their competence.
6.5 You have a responsibility to deliver care based on current evidence, best practice and, where applicable, validated research when it is available.
Many see role expansion as presenting an exciting opportunity to develop new specialisms. However, expanding the nursing role has been controversial and there has been disagreement within the nursing profession as to what approach should be taken. There is no national standard or catalogue of expanded roles. Practices differ from region to region and even within hospitals (Standing Medical Advisory Committee and Standing Nursing and Midwifery Advisory Committee 1989). Some nurses argue that nursing may as a result become too technical and less patient-centred (Giles 1993, Shepherd 1993, Healy 1996). Eaton (1993) quotes Derek Dean (formerly Director of Policy and Research at the RCN): ‘The worry among nurses, many of whom welcome this additional responsibility, is that they are being asked to do extra work without anyone extra to take the load off them. A lot of members have expressed concern. They have said, ‘We are being asked to do things and are rushed off our feet.’
Similarly, Waters (1996) quotes RCN community adviser Mark Jones, who presented at a conference a catalogue of cautionary tales illustrating the dangers of nurses overreaching themselves. The list included one case where a practice nurse with no formal midwifery training had taken over antenatal care and had missed a fetus dying in utero.
A report by Doyal and colleagues (1998) looked in detail at the development of four new nursing posts. Each post involved nurses taking over some part of the work previously done by junior doctors. This study explored the views of nurses themselves and was quite revealing. While the study revealed excitement at the professional challenges they faced, the study also indicated that practitioners received little support and there was considerable confusion surrounding their new roles. Some legal and accountability issues were also noted:
The authors make a number of recommendations for managers and postholders about the management of change which include:
The authors of this report were also in a small working group that looked in further detail at the accountability of changing nurses’ roles. The analyses were published in the British Medical Journal (Dowling et al 1996). They noted that the resulting uncertainties about appropriate management for clinical roles evolving between the professions, coupled with a public increasingly going to court, put nurses and consultants at risk. These health-care professionals faced a risk of complaints, litigation and possible disciplinary hearing. Recommendations to reduce risk included: doctors and nurses as equal partners in planning the new roles; patients should also be informed adequately of the postholder’s role and relevant training. Staff should have access to legal advice and support.
“there were many staff who admitted that they did not know about the arrangements for accountability. They included consultants, ward nurses and junior doctors who worked with the postholders. Certain factors seemed to contribute to the confusion about the understanding of the arrangements for the postholder’s accountability. One of these was lack of clarity about the role. So for instance, at Site X, the doctors saw the postholder’s role as a support worker for them and hence the postholders’ accountability was described as being to the doctors. Senior nurses, however, interpreted the role as that of a nurse specialist with accountability identified within the nursing framework.
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• Areas of work should be identified which the postholder can take over completely with maximum autonomy and minimum dependency on junior doctors for completion of the work
• Nurses and doctors should be equal partners in planning and managing such developments
This report should now be read alongside Department of Health and Royal College of Nursing 2005, which also looked at how extended and advanced roles are understood and utilised (Table 4.1). Two questions in the joint survey asked whether respondents had ever had a referral or investigation request refused because of being a nurse (not a doctor). Almost one in four (23%) of those who referred patients (n = 428) had had their referrals refused because they were a nurse rather than a doctor. The report also states that a third (33%) of the 315 respondents who ordered investigations had been refused on the same grounds. The likelihood of having referrals refused depends on both job title and sector. The report give more details:
It would be helpful if all these organisations could reach an understanding on expanded role.
“Those in nurse practitioner (37%) and advanced nurse practitioner (45%) posts are more likely to have had their referral refused, compared with specialist nurses/CNS (17%) and nurse consultants (24%). Some but not all of this variation would seem to relate to the different distribution of posts between the sectors, and the fact that community/primary care based nurses were twice as likely to have had referrals refused compared with their hospital based colleagues (33% v. 16%). But even within the same sector, those in specialist nurses are least likely to have had refusals (13% in acute and 16% in community/primary). Nurses’ views about the way in which their roles are understood sheds some light on this area.
Strongly agree | Agree | Neither | Disagree | Strongly disagree | n | |
---|---|---|---|---|---|---|
My professional judgement is respected by nursing colleagues | 46 | 49 | 5 | 1 | 0 | 506 |
My professional judgement is respected by other healthcare staff | 38 | 56 | 6 | 1 | 0 | 507 |
Patients generally regard me as a nurse | 33 | 52 | 9 | 6 | 0 | 505 |
My role is understood by other nurses | 13 | 45 | 19 | 21 | 2 | 504 |
Patients have difficulty understanding my role | 3 | 15 | 23 | 50 | 9 | 506 |
Other staff make appropriate use of the services in my role | 12 | 63 | 15 | 9 | 1 | 506 |
Uniform guidance should also be drawn up and a consensus statement issued by the Department of Health with all the professional organisations together, the Nursing and Midwifery Council (NMC) and the General Medical Council (GMC), in conjunction with bodies such as the British Medical Association (BMA) and the RCN, regarding such practice.
The current advice, as will be shown, shows marked differences of approach. It seems from Department of Health and Royal College of Nursing 2005 that whether a nurse who is performing an expanded or advanced role can get a referral appears to be just a matter of luck, which clearly should not be the case.
The emphasis today is upon the nurses themselves making the decision as to whether to undertake an expanded role. If the nurse believes that s/he has the necessary competence, then s/he may undertake the task him/herself. The UKCC was opposed to the use of certificates of competence, a view no doubt shared by its successor, the NMC. Such certificates state that the nurse has undergone a training programme and therefore may be competent to perform a particular task.
It was suggested that the fact that a nurse has been given a certificate might give the nurse a false sense of security and lead her/him to think that accountability for actions had shifted to his/her assessor. But at the same time, before a nurse undertakes an expanded role, appropriate training is essential and such knowledge needs to be sustained and updated.
“In order to bring into proper focus the professional responsibility and consequent accountability of individual practitioners, it is the Council’s principles for practice rather than certificates for tasks which should form the basis for adjustments to the scope of practice.
Employers would need to ensure that a safe system of work is in operation for both staff and patients. As Giliker & Beckwith (2004) state: ‘Employers are required to take reasonable steps to organise and supervise the work of their employees, and to give proper instructions and guidance to employees and check that it is adhered to.’
There is also the common law duty on the employer to provide competent staff. In addition, the nurse maintains a professional duty to act competently through the tort of negligence (Crawford, Bolam, etc., discussed in Ch. 3) and the contract of employment. The requirements of Post-registration Education and Practice (PREP) also imposes an obligation to keep up to date. The NMC (Nursing and Midwifery Council 2004b) states:
A key tool to ensure a safe environment of care may be through the use of guidelines for tasks that have been delegated by doctors to nurses, or where a new role has been developed. The issue of guideline development will be discussed later. In August 2006, the PREP practice will change to 450 hours over three years (NMC 2006).
“The PREP (CPD) standard
“The PREP requirements include a commitment to undertake continuing professional development (CPD). This element of PREP is referred to as PREP (CPD). The PREP (CPD) standard is to:
• undertake at least five days or 35 hours of learning activity relevant to your practice during the three years prior to your renewal of registration
• maintain a personal professional profile (PPP) of your learning activity
• comply with any request from the NMC to audit how you have met these requirements.
“You must comply with the PREP (CPD) standard in order to maintain your NMC registration.
DELEGATION
It is interesting to note that while the discourse in nursing practice is that of the nurse her- or himself undertaking an expanded role, difficult issues remain as to the boundaries of practice and where ultimate responsibility lies. Nurses may take on an increased role because they are acting as independent practitioners. Alternatively it may be because they have been delegated certain tasks to be performed by doctors. Guidance has been issued by the General Medical Council on the issue of delegation stating that (General Medical Council 2001):
There is recognition that doctors can refer cases to nurses as opposed to delegating care; however, overall responsibility still lies usually with the doctor.
Delegation and referral
46. Delegation involves asking a nurse, doctor, or medical student or other health care worker to provide treatment or care on your behalf. When you delegate care or treatment you must be sure that the person to whom you delegate is competent to carry out the procedure or provide the therapy involved. You must always pass on enough information about the patient and the treatment needed. You will still be responsible for the overall management of the patient.
47. Referral involves transferring some or all of the responsibility for the patient’s care, usually temporarily and for a particular purpose, such as additional investigation, care or treatment, which falls outside your competence. Usually you will refer patients to another registered medical practitioner. If this is not the case, you must be satisfied that such health care workers are accountable to a statutory regulatory body, and that a registered medical practitioner, usually a general practitioner, retains overall responsibility for the management of the patient.
Where tasks are delegated, the doctor delegating the task should follow appropriate guidelines. Should the doctor fail to do so and harm results to the patient, the doctor may be held liable in negligence for the harm caused. It may also be the case that, even where the delegation is properly undertaken, the doctor is held ultimately responsible in any event under what is known as the ‘captain of the ship’ approach (Montgomery 1992). It is interesting to note that both the GMC and the BMA assume that, where delegation takes place, the doctor retains ultimate accountability (British Medical Association, 1996 and British Medical Association, 2006). In discussing the competence and curriculum framework for the new NHS post of Medical Care Practitioner the BMA (British Medical Association 2006) state:
It may, however, be questioned to what extent such an approach is appropriate as the role of the nurse develops and s/he is recognised as having greater personal autonomy, and indeed whether the courts would be more likely to hold that the nurse was solely liable where tasks have been legitimately delegated.
“12.…We believe that non medically qualified practitioners should operate within the limitations of pre-determined protocols for specific circumstances under the supervision of a doctor who will be ultimately responsible for the overall patient care. We seek assurance and independent evidence to show that all medical care practitioners are competent to provide safe and effective patient care in all instances of patient contact within their remit.
The boundaries between activities that are undertaken as part of expanded role and those that follow from delegation are unclear. Darley & Rumsey (1996) note that the use of language such as ‘delegation’ is indicative of hierarchy. They suggest that it would be better to talk in terms of ‘shared care’ or ‘referral’; this would have the advantage of emphasising the partnership and teamwork aspects. To avoid confusion a coordinated approach on these matters is urgently needed from both the GMC and UKCC and from other bodies such as the BMA and RCN (see further Dowling et al 1996).
THE PROBLEM WITH CODES
A key issue inherent with any code, protocol or guidance is the extent to which you can incorporate satisfactorily quite difficult concepts such as competence and accountability without trivialising them or making them too simplistic. Codes can spell out the conventional wisdom of a group of people or organisation, for example the NMC, but the enforceability and absorption of that wisdom are more difficult questions. The Scope document sought to change professional cultures, which is a hard thing to do, and therefore such change will be necessarily incremental and slow. Government initiatives such as the 10-point challenge on nursing skills and the NHS National Plan (Department of Health, 2000a and Department of Health, 2000b) have, however, speeded up the pace of change to our present position where expanded role and advance nursing practice are essential to keep the NHS operating. Initiatives such as NHS Direct and walk-in centres would not be able to operate or exist without general acceptance of the extended and advanced roles of nurses. The whole NHS would probably grind to a halt without them.
Case study
A case involving a negligent practice nurse illustrates some difficulties regarding accountability (Parker & Wilson 1992):
A 34-year-old man attended his GP to have his right ear syringed. On examination the GP suspected that the patient had an abscess and prescribed penicillin, asking him to return a week later to see the nurse and have his ear syringed. When the patient returned, his ear was syringed by a locum practice nurse. (The patient later admitted that during the procedure he had felt excruciating pain and dizziness.) Two days later the patient said that his ear had been incompletely syringed and the same nurse repeated the procedure. The patient then returned to the surgery complaining of a sore ear and the nurse referred him to the GP. On examination, the patient was found to have a perforated eardrum and antibiotics were prescribed. Fortunately, he made a good recovery but sued, alleging negligence.
The Medical Defence Union sought expert opinion from a GP and a nurse and was advised that the GP had fallen below the acceptable standard of care in delegating the procedure to the nurse without first having established her competence to carry out the procedure. The nurse, who had not performed ear syringing for some 20 years, was also deemed liable for not declining to perform the procedure. The MDU settled the claim.
Reproduced with permission of the Medical Defence Union from Parker & Wilson 1992. © The MDU 2006. All rights reserved.
CLINICAL NEGLIGENCE AND PROFESSIONAL MISCONDUCT
The crucial issue for the employer, then, is to ensure that, first of all, the nurse is lawfully undertaking the task. The GP in the case above should have at least asked the nurse whether she had performed an ear syringe before and, if so, how long ago. On the facts of the case, the GP could be viewed as wrongfully assigning the procedure to the practice nurse. This may mean that the GP was acting negligently. Creating and stating job competencies and assessment sorts this problem out. Last et al (1992) raise the point:
“How can chief nurses, directors of nursing services and nurse managers be sure that all practitioners are safe to enlarge the scope of their practice? How can managers allow those who are able to fly to do so, yet provide a safety net to those who could never fly, or even worse, those who think they can but cannot, from falling down?
Managers, doctors and nurses have to be trusted to operate the system satisfactorily and in a way that does not compromise patient safety. Overloading the nurse may also have implications for the management should the nurse be unable to perform his/her role because s/he has developed some form of stress-related illness. A nurse who falls ill and claims that this was caused by unduly high stress levels in the workplace may bring legal proceedings claiming compensation for the harm suffered.
The fact that a contract of employment may stipulate stressful working conditions does not by itself mean that a nurse who suffers physical or psychological harm consequent upon that stress cannot bring a claim for damages. This was made clear by the case of Johnston v. Bloomsbury AHA ([1991] 2 All ER 293). Here, a junior hospital doctor brought an action claiming that his employer had broken an implied duty to take reasonable care for his safety and had broken his contract of employment. He was required by his contract to work a basic week of 40 hours and to be available for up to 48 hours per week overtime. In the Court of Appeal a majority of the judges held that he had an arguable case. Stuart Smith L.J. held that the health authority was under a duty to provide a safe system of work. While the obligation to work up to 88 hours per week was contained in a junior doctor’s contract, this had to be set against an employer’s duty to take reasonable care for the employee’s safety.
One difficulty in bringing such actions is that of showing that stress-induced psychiatric injury is foreseeable. Much depends on the circumstances of the individual case. In some instances employers can justifiably argue that they were not aware that their employee had been subject to what were excessive stress levels. Where an employer is, however, put on notice that an employee is susceptible to such a breakdown and then that employee returns to work and suffers a second nervous breakdown due to stressful working conditions, an action consequent upon the second breakdown may meet with more success (Walker v. Northumbria County Council [1995] 1 All ER 737). A nurse would also have to establish that it was the stressful working conditions themselves that amounted to a material cause of his/her breakdown. This may itself be problematic; in many situations stress levels are influenced by factors external to the employment relationship itself, such as home and family life. It is also the case that the assessment of stress levels is a matter that would fall under the employee obligations under the Health and Safety at Work Act 1974.
LEGAL STANDARD OF CARE TO BE EXERCISED BY A NURSE PERFORMING AN EXPANDED ROLE
Where a nurse performs traditional nursing duties the standard of practice required is that of the ordinary skilled nurse in his/her speciality in the circumstances of the case – the Bolam principle. But what is the standard of care s/he must reach if performing an expanded role? Guidance can be taken from the case Wilsher v. Essex Area Health Authority ([1986] 3 All ER 801).
The plaintiff, Martin Wilsher, was an infant child born about 3 months early. He was very ill. He was placed in a special care baby unit where a junior and inexperienced doctor monitoring the oxygen in the plaintiff’s bloodstream made a mistake and mistakenly inserted a catheter into a vein rather than an artery. He asked a senior doctor to check what he had done. The registrar failed to notice the mistake and, when replacing the catheter himself some hours later, made the same mistake himself. The catheter monitor failed to register correctly the amount of oxygen in the baby’s bloodstream. He was given excess oxygen. It was alleged that the excess oxygen in his bloodstream had caused an incurable condition of the retina, retrolental fibroplasia. Martin is now completely blind. A key issue discussed by the Court of Appeal was the standard of legal care to be exercised by the junior doctor in the case. Mustill L.J. stated:
Glidewell L.J. stated:
On the facts before the court the junior doctor was not found negligent. He had done the reasonable thing and asked his superior, but the registrar was found to be negligent. The case went on appeal to the House of Lords on the issue of causation and eventually was set down for retrial. The case was settled for £116 724.40 (Kerry 1991). The key point to be taken from the Wilsher case is that a nurse is liable to be judged by the professional standard of the post that s/he is performing at that time. This means that if the nurse is performing an expanded role, s/he is expected to operate at the level of skill and competence outlined in the expanded role. A further point is that, as Kloss (1988) argues:
“In a case such as the present, the standard is not just that of the averagely competent and well-informed junior houseman (or whatever the position of the doctor) but of such a person who fills a post in a unit offering a highly specialised service. (p. 813)
“In my view, the law requires the trainee or learner to be judged by the same standard as his more experienced colleagues. If it did not, inexperience would frequently be urged as a defence to an action for professional negligence. (p. 831)
“If a nurse undertakes a task for which she knows she has insufficient training, this in itself may constitute negligence, even if she is acting on the orders of a doctor…. If a nurse takes on the doctor’s role she will be judged by the standard of the reasonable doctor.