What is the law?
Law can be defined as a rule of conduct or procedure established by custom, agreement or authority. It is the mechanism by which society regulates the order and control of people who live in it. The legal system itself is enforced by a political body (Jones & Jenkins 2004). The law produces rules by which all members of society are expected to abide. There are rules to deal with conflict, punish unacceptable behaviour and protect society’s members from harm (Jones & Jenkins 2004). If someone is accused of ‘breaking the law’, the accuser should be able to cite the source of the law to which reference is being made (Dimond 2006). If the statement is accurate, then the appropriate Act of Parliament or a previous decided case can be cited. Without the law, there would be anarchy, fear and confusion (Jones & Jenkins 2004).
The law is classified as criminal or civil. A criminal offence is said to have been committed when the accused takes part in a forbidden activity. As a result, he or she will face criminal proceedings in a court of law (Dimond 2011). In this case, the prosecution must prove ‘beyond reasonable doubt’ the guilt of the accused. In the Crown Court, if the accused pleads ‘not guilty’, the case is put before a jury of 12 randomly selected members of the public, who will determine among themselves the defendant’s guilt or innocence.
Civil law relates to the rights of private citizens or institutions. Civil proceedings take place between individuals with a view to obtaining compensation or a remedy, such as an injunction preventing contact between two individuals (Dimond 2011). The standard of proof in civil courts is based on the ‘balance of probabilities’. This means that it must be demonstrated that it is ‘more probable than not’ that the accused is guilty of misconduct.
There are three main sources of English law: statutory law, common law and European law.
Statutory law
A statute is a formal written rule of a country or state. Statutes are Acts of Parliament and as such are the most important source of law. An Act creates a new law or changes an existing one. An Act is a Bill approved by both the House of Commons and the House of Lords and formally approved by the reigning monarch (given royal assent). Once implemented, an Act becomes law and applies to the whole of the UK or to specifically defined countries within the UK. In contrast to an Act, a Bill is a proposal to produce a new law or amend an existing one that is presented for debate before Parliament.
In order to be passed, an Act of Parliament needs to proceed through a number of stages for consideration and debate. When the government is considering introducing new legislation, it has various ways to proceed. It can bring the issue straight to Parliament or it can consult the public first. A Green Paper is a government consultative document, which is circulated in order to obtain the views of the general public, civil servants and ministers – in fact, any interested parties who may add to the debate. Following this, a White Paper is issued, which sets out in everyday language the government’s intentions in relation to implementation of the proposed law.
Examples of Green and White Papers relevant to midwives are Our Healthier Nation (DH 1998), a Green Paper which formed a background to the White Paper Saving Lives: Our Healthier Nation (DH 1999), which was presented to Parliament the following year.
More recently, the latest government presented its long term strategy for improving public health in the White Paper entitled Healthy Lives, Healthy People: our strategy for public health in England (DH 2010).
Visit the Department of Health website (www.dh.gov.uk) to access these Green and White Papers. Search the website to see what other consultations of relevance to midwifery are currently being undertaken. Consider contributing to these.Statutory Instruments (SIs) are a form of legislation which allows the provisions of an Act of Parliament to be brought into force or altered without Parliament having to pass a new Act. They are also known as secondary, delegated or subordinate legislation (House of Commons 2007).
An example of how this system works is the Nursing and Midwifery Order 2001 (SI 2002 No. 253). In 2002 the Nursing and Midwifery Council (NMC) replaced the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC) following this Order. The SI is complicated but comes from section 60 of the Health Act 1999, which allows secondary legislation to amend primary legislation in the regulation of healthcare professions. The Order repealed the Nurses, Midwives and Health Visitors Act 1997 and placed all the relevant regulations in the Order. The NMC was then enabled to produce a new Code of Professional Conduct (NMC 2002) (Jones & Jenkins 2004).
Secondary legislation has the same legal power as primary legislation provided the content remains within the authority of the original Act (Jones & Jenkins 2004).
Common law or case law
This type of law is determined by the decisions of judges in relation to particular cases. The decisions of the courts create precedents which cannot be over-ridden by a court lower down in the hierarchy. For example, a judge in a County Court may not go against a decision made in a similar case in a High Court; the Court of Appeal may not go against decisions made in the House of Lords. However, a judge may decide that the case being heard is different from previous ones which allows the judge to reach a different decision as long as the different feature is clearly highlighted in the judge’s summing up. See Figure 15.1 for an overview of the hierarchy of the court system.
Decisions are recorded in All England Law Reports (All ER) or Weekly Law Reports (WLR) so that everyone associated with the law can have easy access to them.
An example of a case which has great relevance in healthcare is Bolam v Friern Hospital Management [1957] 1 WLR 582. The reference informs the reader that it was reported in 1957 in the first volume of Weekly Law Reports on page 582. This case is also reported in All England Law Reports as Bolam v Friern Hospital Management [1957] 2 All ER 118.
This particular case concerned a man who had been given electroconvulsive therapy without a muscle relaxant or anaesthetic and suffered a fractured jaw as a result. He claimed that his doctor had been negligent in his care. However, the judge, Mr Justice McNair, ruled that a doctor is not guilty of negligence if a responsible body of medical opinion considers that he has acted properly even if not all members of the medical profession share this view. This landmark case put peer judgement at the centre of assessing clinical care and led to the instigation of the so-called Bolam test.
European law
Since Britain joined the European Community (EC) in 1973 and following the signing of the Maastricht Treaty in 1992, which led to the formation of the European Union (EU), it is obliged as a member state to ensure that EU directives and regulations are enforced in the UK. All UK law must also fit within the framework of EU legislation and appeals can be made to the European Court of Justice.
A regulation is binding on all member states from the time it is developed without the need for the states to pass any enabling laws. A directive, however, is binding only in terms of the outcomes which must be achieved and not how they are brought about. In these cases the member states themselves may decide what laws are required in order to fulfil the directive.
An example of a directive relevant to midwifery is the inclusion in the Midwives’ Rules and Standards of the Midwives Directive 80/155/EEC, indicating the minimum activities that midwives should undertake. The Midwives’ Rules and Standards (NMC 2012d) also indicate that this directive must be met in educational programmes leading to registration as a midwife.
The law and the issue of consent
Consent is defined as a client’s agreement for a healthcare professional to provide care. Consent may be given verbally, non-verbally (such as a woman holding out her arm in order to have her blood taken) or in writing (DH 2009).
The NMC Code: standards of conduct, performance and ethics for nurses and midwives (NMC 2008) clearly states healthcare professionals’ responsibilities in relation to obtaining consent before any treatment or intervention is undertaken. This is a general legal and ethical principle and reflects the fundamental right of all individuals to decide for themselves what is to happen to their bodies (DH 2009).
All adults are presumed to have the mental capacity to give consent or refuse treatment unless they are unable to take in information about the treatment, are unable to understand the information given and are unable to consider the information given as part of the decision-making process (NMC 2012a). Issues relating to minors are discussed later in this chapter.
There are two areas of the law relating to consent:
If consent is not given but treatment is undertaken, the client may have grounds to sue the practitioner for trespass to the person. An assault is when a person perceives that there is a threat that she may be touched without her consent. On the other hand, if she is actually touched without giving consent, this is battery. For example, threatening verbal behaviour without any physical contact is assault while a vaginal examination undertaken without a woman’s consent is battery (Dimond 2011).
The person who has suffered the trespass can sue for compensation in the civil courts. In these cases the individual does not have to prove that harm has occurred as a result of the interaction, just that touching occurred without her consent. However, it is worth remembering that the touching behaviour must refer to care or treatment being undertaken by the practitioner. An arm around the shoulder of a distressed person would not count as trespass to the person in these cases.
A healthcare professional also has a duty to give the client all information relating to the treatment, including risks, benefits and alternative treatments. If this is not undertaken, then a woman could sue if she suffers harm as a result of accepting a treatment but then claims that the healthcare professional did not alert her to the possibility that harm could occur. A charge of negligence could then be brought against the healthcare professional.
Consent is valid only if it is given voluntarily by an individual who is fully informed and has the mental capacity to consent to the treatment or care (DH 2009). A midwife attempting to gain consent from a woman for any particular procedure should consider whether the woman has the capacity to give consent, whether she has been given enough information, with time to consider her options and discuss them with a healthcare professional. It is suggested that ‘seeking consent’ should be considered as a joint decision-making process between the client and the healthcare professional (DH 2009). Once consent has been given, the midwife should consider whether consent was given voluntarily or whether the woman was under pressure from her partner, family or others to make a particular decision (Jones & Jenkins 2004).
Usually the healthcare professional who is proposing to undertake the procedure will obtain consent (NMC 2012a). However, in certain circumstances this may be delegated to another healthcare professional who has been appropriately trained for that specific area of practice (NMC 2008). The midwife, according to the NMC (2012a), has three main professional responsibilities with regard to obtaining consent:
When giving information to a woman about a particular treatment or test, make sure you give her full details of advantages and disadvantages of what you are suggesting as well as possible alternatives.There is further guidance concerning consent issued by the Department of Health, which includes key points for healthcare professionals to consider in relation to this issue (DH 2009).
Access the DH website for further guidance about the complex issues relating to consent: www.dh.gov.uk.Emergency situations
An adult who is unable to give consent because she is unconscious may receive whatever treatment is required in order to save her life, provided it is in her best interests (NMC 2012a). In such cases the health-care professionals would not be committing a trespass to the person (Dimond 2011).
Exceptions to this are when the client has already issued an advance directive (sometimes referred to as a ‘living will’) indicating that any further treatment is refused (NMC 2012a). Another exception would be if a woman had made a decision while she was still mentally competent and alert. A Jehovah’s Witness, for example, may refuse a blood transfusion or the use of any blood products and it would be unlawful for midwives or doctors to administer these even if she loses consciousness and her condition becomes critical.
It is not possible for anyone to give consent for treatment for another adult. In this case the practice of midwives asking a partner or another next of kin for consent is unlawful (Jones & Jenkins 2004).
Gina is 38 weeks pregnant and expecting her first baby. She has high blood pressure and has been diagnosed as suffering from pre-eclampsia. The doctor advises urgent admission to hospital with a view to inducing her labour. The concern is that as her condition worsens, her life and the life of her baby will be at risk. Gina fully understands all the risks involved and after careful consideration decides that she does not want to be induced. She would prefer to wait a few more days to see if labour starts naturally…
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