Medicolegal aspects of perioperative nursing practice

Chapter 11 Medicolegal aspects of perioperative nursing practice



Lois Hamlin, Menna Davies



Learning objectives


After reading this chapter, you should be able to:


• understand the regulatory framework that governs nursing practice

• explore the scope of practice of nurses and the decision-making framework that underpins it

• review the role of health policies and professional standards in guiding perioperative practice

• discuss the legislation and common law cases that support issues related to informed consent to treatment, as well as negligence and privacy

• examine patient safety, risk management and quality activities as they relate to the perioperative environment.

Key terms


adverse event

coroners’ courts

electronic health record

informed consent

negligence

patient safety

professional standards

risk management

scope of practice

sentinel events


Introduction


This chapter focuses on medicolegal and ethical topics as they relate to care delivery in the perioperative setting. It addresses issues that are central to safe practice and patient care delivery in terms of their legal, ethical or moral underpinnings. Nursing practice is informed and guided by legislation and common law decisions, by various codes of professional conduct and practice standards, and by state and federal health department or national ministry policies. At a time of strong public and professional interest in safety and quality in health care, patient safety, risk management and quality improvement remain central to the delivery of surgical care in the operating suite.



The regulatory environment


Nursing practice, like the practice of other health professionals, is regulated to protect the public. In Australia and New Zealand this happens via the enactment of variously titled Nurses’ Acts, which enable the establishment of statutory bodies, such as nurse regulatory authorities (NRAs), to administer the Acts. In Australia, nurses are registered by individual state and territory NRAs; however, the Mutual Recognition Act 1993 eliminates unnecessary restrictions on worker mobility between states, including nurses. The Trans-Tasman Mutual Recognition Act 1996 and its New Zealand counterpart extend this privilege (Staunton & Chiarella, 2008). Notwithstanding the current arrangement, a national nurse registering authority in Australia is anticipated in 2009 (Council of Australian Governments, 2006; NSW Nurses and Midwives Board, 2007). In New Zealand, nurses, like all health practitioners, are registered in accordance with the requirements of the Health Practitioners Competence Assurance Act 2003, which also addresses scope of practice and fitness for practice, and provides mechanisms to ensure ongoing competency of nurses.


For nurses, the obvious advantage to a single, national NRA is the ability to practice across jurisdictions without any impediment. A national NRA will facilitate the work of the Australian Nursing and Midwifery Council (ANMC), the peak body in Australia established more than a decade ago to bring a national approach to the regulation of nursing (and midwifery). The ANMC works with state and territory NRAs to evolve national standards for practice and for the accreditation of courses, as well as codes of conduct, which are reviewed and updated regularly (ANMC, 2007). The Nursing Council of New Zealand serves the same purpose and function as an NRA; the Council also publishes a code of conduct for nurses.



Codes of conduct


Perioperative nursing practice in Australia is further informed by national codes of conduct, which are developed and revised by the ANMC (2008; Australian Nursing Council, 2004). In New Zealand, the code of conduct for nurses published by the Nursing Council of New Zealand (NCNZ) (2006) is the pertinent code (Table 11-1). These Australasian organisations also publish standards for registered and enrolled nurses, Nurse Practitioners, and other information that guides practice (ANMC, 2007; NCNZ, 2005, 2006, 2007).


Table 11-1 New Zealand code of conduct for nurses













Four principles with criteria form the framework for the Code. The nurse:
1. complies with legislated requirements
2. acts ethically and maintains standards of practice
3. respects the rights of patients/clients
4. justifies public trust and confidence.

Nursing Council of New Zealand (2006)


The Australian code of ethics and code of professional conduct is based on contemporary research evidence. It is designed to:


• provide distinct professional codes for the discipline of nursing and the discipline of midwifery

• communicate to consumers the codes of ethics and professional conduct that can be applied to the care that nurses and midwives provide within the Australian health profession context

• assist nursing and midwifery regulatory authorities with matters of professional ethics or conduct in relation to nurses’ and midwives’ practice

• inform overseas nurses and midwives wishing to practice within Australia of the standards required in relation to professional practice

• enhance recognition of the contribution of the ANMC to the professions of nursing and midwifery and the Australian community (ANMC, 2008).


Accountability


In all of their activities, individual perioperative nurses remain accountable for their practice and, as necessary, advocate on behalf of their patients; these are enshrined in the various codes of conduct. Box 11-1 provides the ANMC definition of accountability. Accountability and advocacy are further explored under scope of practice (p 265), as well as via an exploration of several legal cases involving perioperative nurses.



Box 11-1 ANMC definition of accountability/accountable


Accountability means that nurses and midwives must be prepared to answer to others, such as health care consumers, their nursing and midwifery regulatory authority, employers and the public for their decisions, actions, behaviours and the responsibilities that are inherent in their roles. Accountability cannot be delegated. The registered nurse or midwife who delegates an activity to another person is accountable, not only for their delegation decision, but also for monitoring the standard of performance of the activity by the other person, and for evaluating the outcomes of the delegation (ANMC, 2007, p 14).



Advocacy


Advocacy can be considered a process whereby nurses provide patients with information to help them make certain decisions, or it can be a nurse pleading for better care of a patient. Acting as the patient’s advocate has legal and ethical implications, which the perioperative nurse must consider. There are few better examples of acting on behalf of the patient than doing so in the perioperative environment where patients are either sedated or anaesthetised and unable to look after themselves. As patient advocate, the perioperative nurse works to ensure the patient’s physical, emotional and ethical needs are met, and must be ready to intervene to protect the patient’s safety. This may include speaking up if correct policies or procedures are not being adhered to or when potential exists for injury without intervention. Ensuring the patient’s safety while they are in the perioperative environment is a clear example of patient advocacy (Schroeter, 2002).


Acting as a patient advocate is not without its challenges, especially if acting on behalf of the patient brings the perioperative nurse into conflict with co-workers, some of whom may be close colleagues. It may be easier to turn a blind eye to incorrect or inappropriate behaviour than to speak up and risk the consequences that confronting the person concerned may bring. However, such inaction may result in harm to the patient and is in conflict with codes of ethics and conduct and the New Zealand Code of Rights. It may also place the perioperative nurse at risk of legal proceedings and professional scrutiny. If faced with this type of situation, the perioperative nurse must either confront the person concerned or seek advice from more senior colleagues who can advise on an appropriate course of action.



Scope of nursing practice


In 2007, the ANMC published a national framework for decision-making by nurses about their scope of practice with the purpose of fostering consistency across jurisdictions. It was developed in the context of national workforce strategies to promote diversity, flexibility and responsiveness in the workforce, and reflects a whole-of-health workforce perspective. The decision-making framework consists of a set of principles that form the foundations for the development and evaluation of decision-making tools (ANMC, 2007). This framework is significant because it will facilitate the development of advanced perioperative roles, as well as other health care provider roles that may be relevant to patient care in perioperative settings. The Nursing Council of New Zealand has similar mechanisms for the development of advanced nursing roles.


Influences for change in nursing practice arise for several reasons, which include:


• legislative or technological change

• community expectations

• professional development

• changes in education

• resource changes, including availability of health care workers and an ageing workforce

• work practice changes, which may include changing models of care initiated by organisations or professional groups; changes in other health professionals or emergent new health care roles (ANMC, 2007; NZ Ministry of Health, 2006).

Nurse Practitioners can now practice in Australia and New Zealand following the progressive introduction of the necessary legislation and processes of authorisation by the relevant NRAs. Even though there are over 100 Nurse Practitioners now authorised across Australia and 26 in New Zealand, very few are in perioperative settings (Michael & Williamson, 2006; NZ Ministry of Health, 2006). One example of Nurse Practitioners in the operating suite is shown in Box 11-2. Advanced roles are explored further in Chapter 12.



Box 11-2 Nurse Practitioners in the operating suite


A small number of perioperative registered nurses are practising at an advanced level and in advanced roles; for example, there are experienced instrument and circulating nurses in one NSW public hospital who are in transitional Nurse Practitioner positions. Part of their role involves seeing (potential) surgical patients in the emergency department and admitting them to expedite their care and management. They do this by assessing and preparing them for surgery, ordering necessary diagnostic tests and arranging their inpatient bed postoperatively.


These roles have the potential to improve patient care because perioperative Nurse Practitioners expedite care in the situation of limited availability of surgical registrars. They also provide continuity of care/assistance more effectively than that provided by rotating junior medical officers. Equally importantly, they have evolved because of an identified local need to improve the surgical patients’ experience and from a nursing perspective (Ward & Hamlin, 2006). However, much work remains to be done to establish perioperative Nurse Practitioner positions in Australasia.


Decision-making related to new, evolving or advanced roles in the perioperative environment should occur within a sound risk management, professional, regulatory and legislative framework, as is spelt out by the ANMC (2007). Such a thoughtful process enables nurses to work to their full and/or potential scope of practice. This also enables appropriate delegation. Perioperative nurses, like all others, must practice within the scope of practice of the nursing profession; that is:



‘… the full spectrum of roles, functions, responsibilities, activities and decision-making capacity that individuals within that profession are educated, competent and authorised to perform’ (ANMC, 2007, p 4).


This definition highlights that they must practice within their own scope of practice as an individual. Thus, as individuals, nurses necessarily have their scope of practice more specifically defined than that of the profession as a whole. The relevance of this notion becomes apparent when considering, for example, requests made to individual nurses to scrub for cases where they may have no prior experience, knowledge and/or support; the result may be that the individual is performing outside her or his scope of practice. The same must be borne in mind when consideration is given to the delegation of activities to other health care workers, such as those roles or activities traditionally completed by registered nurses. When delegation is being considered, the following must be taken into account:


• The motivation for any decision about patient care should be based on meeting patients’ needs.

• Nurses are accountable for making professional judgements about when an activity is beyond their capacity or scope of practice.

• Nurses are also accountable for determining who is the most appropriate person to perform nursing care.

• Nursing practice decisions are made collaboratively, and in the context of planning, risk management and evaluation.

Thus, any decision about care activities that a perioperative nurse might make must involve:


• careful planning

• incorporation of patient wishes whenever possible

• collaboration with the multidisciplinary health care team

• comprehensive patient assessment

• identification of potential risks and hazards, and strategies to avoid them (ANMC, 2007).

An example of the use of such a process, which was used to change enrolled nurses’ scope of practice, is highlighted in Box 11-3.



Box 11-3 Developing an educational pathway for the enrolled instrument nurse


In 2002 a meeting of perioperative nurse managers from one area health service in New South Wales was held to address the issue of inadequate numbers of registered nurses working in the operating suite, by proposing a new model of role allocation. This was prompted by the view that nurses urgently needed to be engaged in workforce design, rather than be sidelined by it, with subsequent limited influence on its outcomes.


The managers knew that enrolled nurses were being allocated successfully to the instrument nurse role in some private facilities in New South Wales and in other states and countries. The advantage of this allocation was that it had the potential to create a more flexible and self-reliant registered nurse/enrolled nurse workforce, whereby the circulating nurse alternates roles with the instrument nurse. When these roles are interchangeable, the nurses can share the workload more equitably, match skills and knowledge more effectively and relieve each other for meal breaks more efficiently.


The managers believed that the time had come to explore this enrolled nurse model in the operating suites and, from the beginning of the proposal, were encouraged and supported by the Area Director of Nursing and Midwifery (Sutherland-Fraser, 2006); they followed a process similar to that found in the ANMC guidelines. So began the journey from a pilot course in one area health service, which was successful, to the implementation of a perioperative education program for enrolled nurses state-wide, which is now a formally recognised certificate course for endorsed, enrolled nurses.



Professional perioperative standards


Perioperative practice is also informed directly by professional standards, including those that are developed and revised by professional associations, such as the Australian College of Operating Room Nurses (ACORN, 2006a) and the Perioperative Nurses College of the New Zealand Nurses Organisation (PNCNZNO, 2005). These standards provide guidance for care delivery and management within perioperative settings and are used by a number of national accreditation agencies (ACORN, 2006a). The evolution, development and ongoing revision of perioperative nursing standards are a key activity of professional perioperative nursing associations worldwide. Perioperative nurses have a role that many other nurses see as highly technical and task-focused (Kuiper, 2004; Riley & Peters, 2000), orientated towards the physical, rather than psychological, aspects of care (McGarvey et al., 2000), and not necessarily even a real nursing role (Fitzgerald & Bull, 2004). Yet perioperative nurses in Australia and New Zealand govern their own practice and, as a group of specialist nurses, act to construct knowledge that informs practice on a wider professional level (Gillespie et al., 2006; Riley & Manias, 2002), which they have done for a significant length of time. The disciplined practices and knowledge that guide perioperative nursing practice and which aid patient safety are underpinned by professional standards. These, among other things, help distinguish perioperative nurses from other categories of health care workers in the operating room, as well as demonstrate the commitment of perioperative nurses to direct patient care and safe patient outcomes (Hamlin, 2005). Much of this knowledge is constructed within the framework of professional standards of practice. One such standard, ACORN’s A3 Handling of accountable items (‘the count’, is now the legal benchmark for perioperative nursing practice in Australia (Hamlin, 2005; Staunton & Chiarella, 2008).



Perioperative competency standards


Perioperative nursing competency standards are aligned with standards for practice. The significance of competency for practice has already been highlighted on page 265. For nurses working in the perioperative environment, the relevant competency standards that guide individual nursing practice are those developed by the two perioperative nursing colleges. In Australia during the course of a 6-year research project, which commenced in 1993, the ACORN competency standards for perioperative nurses were identified and validated (Hilbig, 1999). They have since been reviewed and updated (Williamson & Hill, 2007). These are now used to underpin performance development activities in many perioperative workplaces, and form the framework of the clinical component of some postgraduate perioperative courses (University of Technology, Sydney & Sydney South West Area Health Service, 2007). ACORN does not offer an accreditation service, which is another potential use of competency standards; however, the Perioperative Nurses College (2003) does so on a voluntary, user-pays basis (PNCNZNO, 2003).



Statute and common law


A number of statutes (Acts of Parliament) nationally in New Zealand, and in each state, territory and/or the Commonwealth (Cth) in Australia, directly concern perioperative nurses and nursing practice. They include those associated with privacy and confidentiality, such as national Privacy Acts: Australian Privacy Act 1988 (Cth) and NZ Privacy Act 1993. The states and territories of Australia also have variously titled legislation governing information privacy, such as the Health Records and Information Privacy Act 2002 (NSW), the Health Records Act 2001 (Vic.) and the Information Act 2002 (NT).


Another group of statutes include those that address poisons and drugs regulation, such as the Health (Drugs and Poisons) Regulation 1996 (Qld) and the Poisons and Drug Act 1978 (ACT). Other legislation to bear in mind includes the Therapeutic Goods Act 1989 (Cth) and various occupational health and safety statutes enacted in each state. In New Zealand, the Health and Disability Commissioner Act 1994 and Health and Disability Commissioner Amendment Act 2003 incorporate The Code of Health and Disability Services Consumers’ Rights (known as the ‘Code of Rights’, which is wide and extends to any person or organisation providing a health service to the public. The Code of Rights also covers all health professionals, and an obligation under the Code is to take reasonable actions in the circumstances to give effect to the rights, and comply with the duties. No such bill or code of rights exists in Australia, although a National Patient Charter of Rights is currently at the draft stage (Australian Commission for Safety and Quality in Health Care, 2008).


Common law decisions also have a direct bearing on practice, such as those related to negligence, which is a civil wrong (or tort), and to consent to treatment. Failure to gain consent from patients before treating them constitutes part of the civil wrong of trespass to the person, specifically assault and battery; it should not be confused with the civil wrong of negligence. The underpinning legal principles associated with all civil wrongs are well-established common law principles developed by the courts over several centuries (thereby establishing precedents) and sometimes referred to as case law. Some of the principles addressing the law of civil wrongs or torts have been extended by national, state or territory legislation, all of which vary somewhat (Forrester & Griffiths, 2005; Staunton & Chiarella, 2008). In each Australian state and New Zealand, legislation covers the adult who is incompetent to give consent (Forrester & Griffiths, 2005).


Additionally, state, territory or national health department/ministry policies have a direct bearing on perioperative practice; for example, the NSW Department of Health has a policy related to the conduct of the surgical count, which is mandatory in public hospitals (NSW Health, 2005). Another example is infection control policies, which all states, territories and the Commonwealth have (as well as enshrined in legislation), and which have great relevance to perioperative nursing practice.



Negligence


Negligence is the most widely known civil wrong or tort. Although there is no one accepted definition of negligence, the cardinal principle is that the party complaining (the plaintiff) is owed a duty of care by the party complained of (the defendant), that this duty of care has been breached and, as a consequence of that breach, the party complaining suffered damage (Staunton & Chiarella, 2008).


The roles that perioperative nurses undertake while caring for surgical patients requires diligence and discipline, as there are numerous areas where the potential for injury to the patient can occur within the perioperative environment. This is because of the vulnerability of individuals undergoing surgical intervention and the nature of the surgical environment itself. Some examples of the mishaps that surgical patients may experience, although this list is by no means complete, include:


• incorrect positioning

• inadvertently retained surgical items

• lost tissue specimens

• incorrect operation or operative site

• medication error

• equipment failure (Institute of Medicine, 1999; Wilson et al., 1995).

When entering the operating suite, patients are at one of the most vulnerable periods of their hospitalisation. They place their trust in the surgical team to ensure that no harm will be done. Unfortunately, sometimes events occur that result in patients being harmed. Patients who experience injury or harm may decide to bring an action against those whom they believe are responsible for that harm. A civil case for negligence can be brought by patients who believe that they have been injured as a result of health professionals’ care falling below the required or accepted standard of care; that is, the acts (or omissions) were not those expected of the ordinary, reasonable health professional. Nurses can and do become involved in legal proceedings, resulting in their practices being examined; however, it should be noted that it is rare for nurses to have an action brought against them directly (i.e. be sued individually).


In an action of negligence, a patient, or plaintiff, has to prove a number of elements to establish that, on the balance of probabilities, negligence has occurred. These elements include establishing that:


• the nurse owed the patient a duty of care; this is usually unequivocal.

• there was a breach of the duty of care (i.e. the nurse failed to act according to accepted practice standards)

• there was damage to the patient, which can be physical or psychological

• there was a direct link between the breach of the duty of care and the damage suffered by the patient (Staunton & Chiarella, 2008).

All these elements are exemplified in the Australian negligence case, Langley & Another v Glandore Pty Ltd (in Liq) & Another (1997), which is outlined in Box 11-4.



Box 11-4 Langley & Another v Glandore Pty Ltd (in Liq) & Another (1997)


A patient underwent a hysterectomy in a Queensland hospital. After suffering symptoms over a period of months, investigations revealed that a surgical sponge had been inadvertently left in her abdomen. This was removed in a second operation 10 months after the first procedure. She sued the surgeons and hospital, as the latter was vicariously responsible for the perioperative nurses. The judge at the first hearing found the surgeons negligent for leaving the sponge inside the patient, but the nurses were found not to be negligent. The surgeons appealed the judgement on the basis that the circulating and instrument nurses played a crucial role in accounting for the sponges used in the procedure. At the appeal hearing. the judge agreed with the surgeons and, in a significant judgement for perioperative nurses, made it clear that both of the nurses were ‘primarily responsible’ for the count. Neither nurse could provide an explanation as to how a counting error occurred or why the count sheet from the original operation was shown to be complete (Staunton & Chiarella, 2008).


The elements of negligence from this case were as follows:


• The surgical team owed a duty of care to the patient during surgery.

• The nurses breached their duty of care by failing to follow accepted standards in relation to counting (this was determined to be the ACORN standard, A3 Handling of accountable items).

• The sponge left inside the patient caused damage, pain and suffering.

• The sponge inadvertently left inside the abdomen was the direct cause of the damage to the patient.

Significant points highlighted by this case were the use of the ACORN Standards in court in order to establish the standard of care expected when handling accountable items (ACORN Standard A3 Handling of accountable items). Another significant point made by the judge in the appeal hearing was to place ‘primary responsibility’ for the count in the hands of the circulating and instrument nurses. It should be noted that the count sheet produced in evidence in this case was complete, with no indication of a counting error evident. This Queensland case, and others that have since arisen (e.g. Elliot v Bickerstaff [1999]), highlight the need for vigilance when conducting and recording counts, and handling accountable items intraoperatively.



Consent to treatment


All patients undergoing surgery must understand and give informed consent to the procedure. This is the same for any health care treatment, which patients may accept or decline (Staunton & Chiarella, 2008). Health department and local policies set out the requirements for consent that are considered to be valid based on common law decisions, which vary from state to state (see Box 11-5 on Rogers v Whitaker). In New Zealand, the Code of Rights enshrines patients’ rights related to consent, which must be fully informed and given freely. Although it is not the role of perioperative nurses to obtain the patient’s consent for a surgical intervention, they do have a responsibility to check that patients have given consent to treatment, and that the consent is informed. This is usually evidenced by the presence of a signed consent form.



Box 11-5 The case of Rogers v Whitaker (1992) 175 CLR 479


Mrs Whitaker, a lady in her 60s, was blind in her right eye following a penetrating eye injury when she was 9 years old. Despite this, she had led a normal life, was married and had raised four children. In 1983 she decided to rejoin the workforce and went for a pre-employment health check. Her general practitioner suggested that she might investigate the possibility of a corneal graft to her damaged right eye and referred her to Dr Rogers, an expert in this area. Over the next few months, Mrs Whitaker and Dr Rogers had several consultations and treatment options were discussed. Dr Rogers felt that surgery could significantly improve her sight and Mrs Whitaker agreed to undergo surgery.


Surgery proceeded uneventfully, but complications developed in the postoperative period. Significantly, the left eye (the eye that had vision) developed ‘sympathetic ophthalmia’, a serious, although rare, inflammatory condition. Despite intensive treatment, Mrs Whitaker lost the sight in her left eye and, unfortunately, had little improvement in the right eye. She was, effectively, left blind. Mrs Whittaker sued Dr Rogers for negligence on the grounds that he had failed in his duty of care by not warning her of the possibility of sympathetic ophthalmia. She won her case and was awarded compensation. Dr Rogers appealed the decision against him in a case that went all the way to the High Court of Australia. In a majority judgement, the High Court upheld the decision of the lower court and, in doing so, made several significant statements, which have influenced policy development in the area of informed consent (Staunton & Chiarella, 2008).

Only gold members can continue reading. Log In or Register to continue

Related posts:

  1. Page
  2. Contributors
  3. Professional development and future roles and practice
  4. Surgical intervention

Stay updated, free articles. Join our Telegram channel
Tags:
Feb 9, 2017 | Posted by in NURSING | Comments Off on Medicolegal aspects of perioperative nursing practice

Full access? Get Clinical Tree
Get Clinical Tree app for offline access