Introduction

Practitioners in the National Health Service (NHS) have a professional responsibility to maintain their knowledge of the law and its impact on clinical practice. It is also essential to practise within the law and specific codes of conduct, outlined by the Nursing and Midwifery Council (NMC 2008), which is responsible for professional regulation. This ensures that practice is maintained within specific standards, through competency. As health service employees, nurses have contractual agreements to provide care that will protect the patient and is of the highest standard. Therefore consideration needs to be given to policy and procedure.

The law of negligence emphasises the duty of care that health practitioners must provide. This is reinforced by Griffith and Tengnah (2004) who maintain that a duty of care is a requirement from one person to another, thus ensuring care to prevent harm. Therefore the principles that nurses apply to practice in order to make a judgement on whether a decision is right or wrong relate to the fundamental concept known as ethics (Griffith and Tengnah 2008).

The ideology of ethics is based on the principle of beneficence (Griffith and Tengnah 2008) – in other words, ‘do no harm’. This principle is also outlined within the code of conduct as a standard requirement. Beneficence also highlights the professional responsibility to work with others in protecting and promoting individuals’ overall health. However, each individual practitioner has ultimate responsibility for any acts or omissions (NMC 2008).

Legal context of practice

A competent nurse is one who is confident to practise with knowledge that is current. This includes the ability to practise skills at the required level (NMC 2008). Modern-day medicine has promoted the notion of competence, accountability and knowledge with the introduction of the NHS Knowledge and Skills Framework (KSF). This sets a framework for competence in line with training and ensures fitness to practise, quality and service provision (Department of Health 2004a).

Within the legal context of practice, practitioners are accountable whether acting on another’s instructions or not (Griffith and Tengnah 2008). Inappropriate delegation, in the eyes of the law, would be assessed using a concept known as the Bolam test. This is case law, which puts great emphasis on the fact that a reasonable standard of care must be adhered to. Therefore each ­individual will be judged according to the ordinary skilled man. In the case of a nurse, individuals will be judged by standards of the ordinary skilled nurse, who is considered to have the same level of skill (Griffith and Tengnah 2008).

Within healthcare, the Bolam test is modified to give consideration to the skill involved (Griffith and Tengnah 2008). For example, if a respiratory nurse specialist delegated a specific task to a nurse who was not a specialist within that field, and the non-specialist chose to accept the responsibility of that delegation, then he/she would be assessed in the same manner as the respiratory nurse ­specialist. Naturally the same principles apply to all areas of nursing. Putting this further into ­context, litigation has increased within the modern health service (Griffith and Tengnah 2008) so it is paramount that nurses keep abreast of all developments in relation to the legal context of their practice.

Evidence-based practice

The concept of evidence-based practice enables the provision of care for respiratory patients using the best available evidence. The importance of evidence-based practice is alluded to by the NMC to support practice. Policies such as the BTS guidance are examples of how evidence can be used to support competent practice.

Nurse prescribing

The Crown report outlined the legal framework for nurse prescribing. This gave clear guidance in order for nurses to practise within a legal and ethical framework (Department of Health 1999). In essence, it is common law that regulates prescribing in relation to the standard of care required for patients, who can claim negligence and sue for damages (Griffth and Tengnah 2004). The Bolam principle also applies to nurse prescribing, thus preventing any breach with a duty of care.

Trounce et al. (2004) reiterate the importance of standards in prescribing practice. They also highlight the need for professional and legal accountability for prescribing decisions, irrespective of any set protocols. Although nurse prescribing within children’s nursing is very much a specialist role, it is important for ward-based nurses to be aware of such extended roles and the implications for the legal context of practice.

Law and ethics

The basic principle of ethics, which is a duty of care and to do no harm, is very much at the forefront of nurse prescribing. Following legislation, nurse prescribing has become one of the new innovations for modern-day healthcare. The intention is to provide patients with better service provision (Jones 2009). It is not intended to replace but to complement the role of doctors. Therefore nurses prescribing outside their practice area or specialty is highlighted.

Naturally extended roles require an assessment. Any advice that is given needs to be documented, in particular any prescribed medication and most significantly the correct dose (Griffith and Tengnah 2004). This will ensure not only patient safety but continuity of care for the patient at future consultations.

Record keeping

To ensure patient safety and continuity of care, it is paramount that record keeping is meticulous. It is also necessary to have policies and local guidelines for nurses when prescribing medicines to patients (Jones 2009), to ensure that they are operating within the legal framework. The law is quite clear about the requirements for good record keeping. The general consensus is: if it has not been documented in the patient’s notes, then there is no evidence to support any future claim that correct care was provided.

Every area providing health services will have the necessary documentation required to meet local need. It is the responsibility of every practitioner to document information following any encounter with patients. It has been noted in child protection cases that trying to create a chronology of events can be problematic at times because of poor documentation. With increased public awareness about healthcare, nurses need to be more vigilant in relation to professional accountability and accurate documentation.

Nurse-led clinics

National drivers from the Department of Health set the scene for nurses to provide care that is nurse led to meet the needs of patients. Nurse-led initiatives such as nurse-led clinics have also enabled nurses to practise independently. This is also endorsed by the government, giving patients quicker access to specialist treatment (Hatchett 2008).

The ethos of nurse-led clinics is provision of the best possible care for patients (Hatchett 2003). Nevertheless, accountability is paramount and constant consideration to practising within the legal framework is essential to ensure the health and safety of the patient.

Following discharge from hospital, ward-based nurses may refer patients to a nurse-led asthma clinic, for ongoing support and management. Such clinics have given patients more choice. Treatment can be initiated in a nurse-led format by children’s respiratory nurses. Care often includes skin prick testing, management plans and commencement of new treatments such as nebulised antibiotics.

A nurse-led clinic provides the opportunity for education and time to support children and ­families, in order for treatment to continue at home. As with all new initiatives, it is important that services are evaluated, particularly with children because it is important to find out if parents feel that such services benefit their child’s healthcare.

Health and safety law

Health and safety law is significant for nurses, in particular the safe use of equipment. This is achieved through a risk assessment culture, which is now commonplace within healthcare. Therefore, training, policies and procedures to guide practice are all necessary. It is also necessary to ensure that health and safety assessment of equipment is a continuous process, for example with nebulisers and infusion pumps that are used over a period of time, when patients carry out complex procedures at home.

An assessment process ensures that equipment is suitable for the environment when caring for a sick child in the community (Dimond 2005). Therefore a risk management strategy needs to be in place prior to discharge. Such safety measures enable practitioners to consider the welfare of the child, which is ultimately part of a nurse’s accountability and professional responsibility to do no harm.

Accountability

To be accountable, one is considered to be responsible and answerable for one’s actions, as ­suggested by Griffith and Tengnah (2008). In every situation, healthcare professionals must use their professional judgement at all times. However, each individual is accountable for their own actions within clinical practice. This responsibility is also shared with their employer. Therefore learners should always seek advice from senior colleagues/mentors.

Professional accountability consists of many facets, including:

• an awareness of the important of inappropriate delegation
  
• the need to be familiar with and adhere to professional boundaries
  
• the need to maintain confidentiality and to share information only on a need-to-know basis.

Consent

The law relating to the sick child comes from acts of Parliament known as statute. These statutes are divided into case law and common law (Dimond 2008).There are various statutes that relate to the care of the sick child, such as section 8 of the Family Law Reform Act (Department of Health 1969) and the Children Act 1989.

The Children Act 1989, revised in 2004 (Department of Health 2004b), sets the fundamental principles and standards required for consent to treatment. For all areas of nursing, there is a requirement to have knowledge of the Children Act and an awareness of consent and how this can be influenced by others (Dimond 2008). Carey (2009) explored issues surrounding the ability of adolescents to give consent and also highlights the significance of nurses’ beliefs, in relation to ­acting as an advocate for the rights of young people.

The Family Law Reform Act 1969, section 8, states that children aged 16–17 years old can give consent. However, consent can be retracted if evidence suggests that they are not capable of giving consent or if they have reduced mental capacity, witnessed in practice with disabled children who have complex healthcare needs.

Within the busy nature of the NHS, practitioners need to find a way to create a balance with ethics and morals which shape our professional judgement (Carey 2009). There are many issues to consider when assessing a young person’s capability to give informed consent. The precedent set by the notion of ‘Gillick competence’ emphasised that age would not be the only variable that decides the right to consent (Carey 2009; Gillick 1985).

It is also important for nurses to ascertain if a child is deemed mature and capable of understanding the situation, if it is not possible to contact the parents, which very rarely occurs. To ascertain such facts, an assessment needs to be made to decide whether the child is capable of making an informed decision, often referred to as being either Gillick or Fraser competent.

The legal framework of consent for children and young people maintains that a child is ­competent according to Lord Fraser’s guidelines. This is usually implemented in exceptional circumstances (Dimond 2008). The Fraser guidelines give a clear structure for consent in relation to contraception for young people, but are also applicable to any treatment. Although the law states that parents have the power to give or withholdconsent, this is not absolute (Dimond 2008). It is, however, the parent’s responsibility to obtain medical treatment for their child. If this duty of care is not carried out, then by law this is considered to be a criminal offence, in particular in a life-threatening situation.

Children and young people are often invited to take part in research. Many studies relating to respiratory conditions can involve frequent blood tests. For any child who has problems with needles (often referred to as needle phobia), it is important that they are not coerced into such studies that ultimately may not be in their best interest. Consequently, it is important that practitioners and students are aware that the principles of consent within the Family Law Reform Act do not apply to research, unless it is related to current treatment. The law recognises shared consent with parents and young people, and many other facets to consent, such as children in the care system, which is beyond the scope of this book.

Safeguarding

The Children Act (Department of Health 2004b) is the legal framework that sets principles for the welfare of the child. As a nurse, it is important to be familiar with local child protection procedures and concepts of the Children Act. The exception to the general rule of information sharing would be if safeguarding the welfare of the child is the main concern. Confidentiality is over-ridden in child protection cases because of the need for all agencies to work together. However, even in these circumstances, information sharing should only be on a need-to-know basis.

The ethos of care for safeguarding teams is collaborative working in order to protect children from harm. With a specialty such as respiratory nursing, consideration needs to be given to care management, for example compliance with treatments, such as inhalers, oxygen therapy or physiotherapy and how this can be improved, before the issue of neglect is considered. In a situation such as this, the multidisciplinary team has the difficult task of deciding when non-compliance becomes a safeguarding issue. Therefore it is vital that all agencies work together, including the parents and primary care professionals. Ultimately the intention is to improve the overall health and wellbeing of the child and family.

The following case study demonstrates how domestic violence can affect a parent’s ability to give informed consent to treatment. This is often due to fear of the repercussions, and in this case the child was not of an appropriate age to consent herself. However, in this case the treatment was in the best interest of the child.

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