Acts of Parliament

Most English law is in the form of Acts of Parliament (statutes). An Act of Parliament is primary legislation, e.g. the Disability Discrimination Act 2005. Statutory instruments (subordinate or secondary legislation) made under delegated powers provide the regulations needed to implement a particular Act.

An Act results from a Bill (a draft proposal). Proposals for legislative changes may be contained in government White Papers. Consultation papers, sometimes called Green Papers, which set out government proposals and seek comments from interested parties, including the public, may precede these. There is no requirement for there to be a White or Green Paper before a Bill is introduced into Parliament.

The draft proposal or Bill is introduced into either the House of Commons (the elected Lower house) or the House of Lords or Upper house (currently an unelected body). The procedure of passing a Bill is similar in both Houses, and has seven stages (Fig. 6.1). If both Houses vote for the proposal then the Bill is ready to become an Act; however, it only becomes law after receiving Royal Assent.

Fig. 6.1 How a bill becomes law

The law undergoes constant reform in the courts as established principles are interpreted, clarified or reapplied to meet new circumstances; laws become outdated, new policies require new laws, or new laws are needed to ensure that the UK complies with international or European Law, e.g. The Human Rights Act 1998 (see pp. 150 and 151).

Case or common law – judge-made law

Case law or judge-made law predates statute; however, common law rules may be regarded as secondary because of the many statutes that now exist. The rules in case law are derived from legal principles laid down by judges over many years. Nevertheless, case law still remains an important source of law, particularly in negligence cases (see pp. 155–157). Case law is subject to a system of precedent where the earlier decisions made by a higher court mean that a lower court must follow their decision. Rulings of the House of Lords (the highest court) are binding on all lower courts, whereas those of the Court of Appeal are generally binding on lower courts (McHale & Tingle 2001) (see Fig. 6.2).

Fig. 6.2 The court system (England and Wales)

The Human Rights Act

The Human Rights Act (HRA 1998) is wide ranging and promises that the state will respect the rights and freedoms of individuals. Human rights are very much a part of everyday life – as citizens, professionals, patients and clients (McHale & Gallagher 2004). Nurses need to be aware of the potential implications of the Act for their practice and care provision. The HRA 1998 applies to children (a person under the age of 18) as well as adults.

The HRA 1998, which became law in 2000, incorporates the rights and freedoms guaranteed under the European Convention on Human Rights (the Convention). The Convention was drafted following World War 2 and the UK was one of the first countries to sign up in 1953. In total, 45 countries signed and these make up the Council of Europe. The Convention confers a number of rights on people (Tingle & Cribb 2003). It is divided into schedules, which are further divided into articles. These are:

as well as

Since the HRA 1998 came into effect in 2000, English courts deciding on a matter connected with one of the rights must, as far as applicable, have regard to decisions made by the Strasbourg Court (McHale & Tingle 2001). In addition, new legislation must also comply. It also means that all public bodies must act in accordance with the Convention, including the healthcare system (Tingle & Cribb 2003).

It is worthwhile considering how some HRA Articles impact on nursing practice (Box 6.1). Nurses act as advocates for their patients/clients, to safeguard standards of care and to speak out where the patient/client may be at risk. The Nursing and Midwifery Council (NMC) code of professional conduct: standards for conduct, performance and ethics (NMC 2004) already requires registrants to bring any circumstances that may compromise patient/client care and safety to the attention of an appropriate authority. Article 2 reinforces this professional obligation.

Article 2 has clear implications for decisions regarding withholding and/or withdrawing of life-preserving or life-saving treatment. It must be clear, however, that there will always be challenges with regard to non-resuscitation orders and demands for more aggressive treatments for people with serious illness.

Article 3 states that no one shall be subject to torture or inhumane degrading treatment or punishment. Inhumane treatment is deemed to be any treatment that causes intense physical and mental suffering.

Mental health legislation

In England and Wales the Mental Health Act (MHA) 1983 (Department of Health [DH] 1983) currently makes provision for the compulsory detention and treatment in hospital of those with a mental disorder. It is important to remember that many people with mental health problems are in hospital as voluntary or informal patients, i.e. not detained there under any provision of the MHA. Following consultation on updating the MHA 1983, including a draft Mental Health Bill 2004, the Government announced in 2006 that a shorter Bill would amend the 1983 Act.

The Mental Health (Care and Treatment) (Scotland) Act 2003 is the legal authority for mental health services in Scotland. Unlike the Scottish Mental Health Act (1984), the new Act is rights-based and underpinned by a set of guiding principles. These help to set the tone of the Act and guide its interpretation. As a general rule, anyone who takes any action under the Act has to take account of the principles (see www.nes.scot.nhs.uk/mha).

At the time of writing an independent review of mental health and learning disability (law, policy and provisions) is in progress in Northern Ireland (see www.rmhldni.gov.uk).

It is important to remember that mental health issues and mental health legislation can affect anyone and involves all areas of healthcare (Box 6.2).

The MHA 1983 (Section 1, p. 2) describes four categories of mental disorder:

Conditions generally accepted as falling under the category of ‘mental illnesses’ include schizophrenia and mood disorders (depression and manic behaviour). Most admissions under the MHA 1983 requiring the category of mental disorder to be specified are admissions of people with a diagnosis of a ‘mental illness’.

The Children Act 2004 and child protection

The Children Act 2004 is an important piece of legislation in the protection and welfare of children. The impetus for this legislation was the death of Victoria Climbié and the subsequent inquiry into the circumstances of her death chaired by Lord Laming (Box 6.3). Background to the Children Act 2004 can be accessed at the Department for Education and Skills (DfES) website (www.dfes.gov.uk/publications/childrenactreport); this includes:

The report into the death of Victoria Climbié urged majorreforms of children’s services. The Children Act 2004 (and subsequent Regulations) provides the legislation for wide-ranging strategies for improving children’s lives including the appointment of a Children’s Commissioner. The Act deals with the services which all children use, and the services needed by children who have additional needs (DfES website 2005) (see Ch. 3). The Act aims to ensure that the planning, commissioning and delivery of children’s services are integrated. Other aims include improving multidisciplinary working, preventing duplication, integrating inspection procedures and increasing accountability (DfES website 2005). The legislation allows local authorities flexibility in the ways they provide children’s services.

Where healthcare professionals suspect that a child may be neglected or abused by parents/carers or others, they have a clear duty to act. The action taken will be determined by the immediacy for protection, treatment or care. NHS Trusts etc. and local authorities have child protection policies that must be followed by healthcare professionals and others working with children (see Box 6.3). Nurses should note the NMC position on the matter of confidentiality in child protection matters: ‘Where there is an issue of child protection, you must act at all times in accordance with national and local policies’ (NMC 2004, Clause 5.4, p. 9).

Data Protection Act 1998

The provisions of the Data Protection Act (DPA) 1998 are designed to balance the right of individuals to privacy and the rights of those people/organizations who have valid reasons for holding and using personal data, such as healthcare professionals. The DPA provides people with some rights about data held about them but also sets out certain duties/obligations for the people/organizations that collect, hold and process such information.

Nurses have a responsibility to protect data as most manage, or will manage, personal information about people (see also ‘Documentation and record keeping’, p. 154, and ‘Confidentiality’, p. 157). The DPA sets out eight principles of good practice, e.g. data held must be accurate. Readers requiring more information are directed to the Data Protection Act Factsheet produced by the Information Commissioner (2005).

It is also important to be aware of the patient’s/client’s rights in relation to personal information held about them, how it is managed and how they can request access to it (see Access to Health Records Act 1990, Table 6.1). The DPA, the HRA 1998 (see pp. 150 and 151) and the Freedom of Information Act 2000 (see Table 6.1) are interlinked.

Statutory regulation (see Ch. 7 for detailed coverage)

Health professionals are subject to statutory regulation, e.g. the General Medical Council (GMC) regulates doctors; the Health Professions Council (HPC) currently regulates 13 professions including dietitians, physiotherapists, etc. The Nursing and Midwifery Council (NMC) is the regulating body in the UK for nurses, midwives and specialist community public health nurses. At the time of writing, wide-ranging reviews of non-medical and medical professional regulation are due to report. It is likely that the number and functions of regulatory bodies will change. The purpose of statutory regulation is to ensure standards of care and practice and to provide protection for the public. The NMC regulates the profession and maintains a register of practitioners (Box 6.4). When a practitioner seeks employment the employer would ensure the practitioner is registered with the NMC as well as requiring a satisfactory Criminal Records Bureau check.

The law protects the title of registered nurse, midwife, etc. and it is a criminal offence to use the title without being registered with the NMC.

The NMC Code of professional conduct: standards for conduct, performance and ethics (NMC 2004) (see Ch. 7) has two key functions: to inform the profession of the standard of professional conduct of registered practitioners, and to inform the public, other professionals and employers of those standards and conduct expected of professionals.

For student nurses, their training and education must include essential placement hours and core skills. These are mandatory requirements for professional registration and must be achieved by student nurses before registration. Once a nurse qualifies, the NMC continues to monitor professional development and education as a requirement for periodic registration (see Ch. 7).

The NMC provides guidance for clinical experience to student nurses (see Ch. 7). For example, student nurses must always introduce and identify themselves as students, as some patients/clients may not wish to be cared for by a student nurse. If the patient/client asks the student nurse to leave they must do so (NMC 2005a). Although student nurses are not accountable professionally to the NMC until they become registered, they can be called to account by the law or their college or university for any actions or omissions (NMC 2005a).

Contracts of employment

Employees are protected by a contract of employment but have responsibilities to the employer to fulfil their contractual obligations. Thus, the nurse’s employer would have the expectation that the nurse acts in accordance with that contract, e.g. keeping confidential information secure. In an employment contract, boundaries or limitations of practice are clearly stated and responsibilities identified. It is important to be aware of how the employer and the practitioner interpret it. A job descrip-tion should provide clear expectations of the practitioner and identify functions expected within that role. Contracts also protect the employer. For example, if a nurse were to practise outside their job description or contract, their employer may not accept liability for any negligent acts or omissions (see p. 155).

Direct liability is where the employer is at fault; indirect or vicarious liability is when the practitioner is at fault. Some employers accept the liability (see below) but others may not.

When disputes arise between employee and employer they may be referred to an industrial tribunal. These hear unfair dismissal, discrimination and other cases in relation to statutory employment rights as well as some breach of contract actions.

Professional indemnity insurance

The NMC recommends that registrants have professional indemnity in the event of a claim for negligence: ‘Some employers accept vicarious liability for negligent acts and/or omissions of their employees’ (NMC 2004, Clause 9.2, p. 12). However, this cover does not include actions outside work. Registrants working independently will need to obtain their own insurance cover. As some agency work may not be covered by insurance, registrants should check their insurance status and if necessary obtain cover through a professional organization or trade union, such as the Royal College of Nursing (RCN). It is important for practitioners to be aware of professional responsibilities and boundaries, and have an appreciation for the law.

Conscientious objection

Healthcare professionals, patients or their family may have a conscientious objection to a particular clinical procedure, e.g. termination of pregnancy. Nurses may object to their participation in abortion on religious or cultural grounds. The Abortion Act 1967 gives the nurse the right to refuse to be involved in these clinical procedures. However, the statutory right of conscientious objection does not extend to those persons more remotely connected to the abortion process (McHale & Tingle 2001). The NMC (2004, Clause 2.5, p. 5) states that:

Policies, procedures and guidelines

In addition to the guidance provided by The NMC Code of professional conduct: standards for conduct, performance and ethics (NMC 2004), nurses have access to national guidelines and local policies, procedures and practice guidelines produced by their employer (see Ch. 5). Nurses must also consider how the law affects professional guidelines, practice and patient/client outcomes.

Documentation and record keeping

Proper documentation is a fundamental aspect of recording what nurses do and how they decide on a particular course of action. There is a saying that ‘if nursing care is not written down then it did not happen’. As nursing records can be used in evidence in a variety of settings, including professional conduct hearings and courts, what is documented and how care is documented are extremely important (Box 6.5). Full and accurate records can protect the nurse if allegations of poor or negligentcare are made. The NMC publication Guidelines for Recordsand Record Keeping (NMC 2005b) offers guidance and allnurses should be familiar with its contents. In addition, the Access to Health Records Act 1990 ensures that recordsare accurate and used appropriately by those to whom they relate and others, such as nurses and the multidisciplinary team (MDT).

The interpretation of what is written may be quite different from its intended meaning. The example in Box 6.5 may be viewed as uncaring or judgemental. It may be seen as lacking professionalism. Sparse detail and abbreviations can make the meaning unclear and open to misinterpretation if used in a court of law. Information needs to be accurate, measurable, quantifiable and qualitative. For example, ‘11’ portrays none of these. Documentation is a means of recording data about a patient/client, which the MDT may share. Documentation that lacks clarity or meaning is dangerous and fails to achieve what it was intended to do.

Reporting incidents/accidents (see Ch. 13)

Following any clinical incident – whether it is a drug error, verbal abuse or violence, or accident or injury to a patient/client, staff, visitor or member of the public – it is essential that this be reported and documented (Box 6.6). Importantly, ‘near misses’ should also be reported and documented.

A statement is a formal account and record of an incident or sequence of events. It is prepared by the person(s) involved, e.g. the staff nurse who witnessed the incident or was involved in the event. As an incident form has limited space to record an event, the facts should be accurate and concise. All NHS organizations will have a protocol and forms for the reporting of clinical incidents (see Ch. 13).

In the case of litigation, records of this nature are used when presenting the facts in court and referred to in an investigation. Often, this may take months and therefore accurate documentation at the time of an incident is crucial.

In addition, some incidents, e.g. an injury lasting more than 3 days or a work-related disease, must be reported to the Health and Safety Executive under Reporting ofIncidents, Diseases and Dangerous Occurrences Regula-tions (RIDDOR) (see Ch. 13).

Accountability to employer

Where negligence has occurred and harm caused because the nurse failed to follow reasonable instruction, guidelines or protocols, the employer has the right to take disciplinary action against the employee. For example, a staff nurse failed to check the patency of an intravenous (i.v.) cannula prior to starting an i.v. infusion containing an antibiotic. Within 15 minutes the patient complained of pain and burning at the site. The staff nurse said that this sometimes happened and not to worry. The patient continued to have pain and told another nurse who looked at their arm. The i.v. fluid containing the antibiotic had infiltrated into the tissues (‘tissuing’) (see Ch. 19). Fortuitously, no tissue damage had occurred.

The incident was reported and investigated and it was found that the staff nurse had not followed local guidelines for the administration of i.v. antibiotics. The patient eventually made an official complaint.

The staff nurse was required by his employer to undertake further training in i.v. therapy and drug administration and to work under direct supervision until considered to be competent. The patient and their family received an apology from the NHS Trust and were informed of the remedial action. They were satisfied and decided not to take legal action.

Should a qualified nurse fail to practise safely or work within stated guidelines and protocols, their employer may require a period of supervised practice, action plans, training, counselling, disciplinary procedures such as oral or written warnings, and possibly suspension or dismissal. They may also make a report to the NMC.

Professional accountability to the NMC

If a nurse is accused of misconduct, such as an action/omission that is found to be negligent, or they are convicted of certain criminal offences, they will be reported to the NMC. The NMC reviews the information surrounding the allegation and informs the individual of the allegation made. An Investigating Committee decides whether there is a case to answer and also decides if interim suspension or interim conditions of practice are justified. If the Investigating Committee decides there is no case to answer the case is closed. On the other hand, if there is a case to answer it will be referred to the Conduct and Competence Committee (CCC) or to the Health Committee if the nurse is considered unfit to practise by virtue of their physical or mental health. The standard of proof required by the CCC is the criminal standard, but it is likely to become the civil standard. If the CCC finds the facts proven they may, depending on the degree of unfit practice and risk to the public, decide to:

Civil accountability

Nurses may encounter the civil courts in relation to negligence claims or trespass against the person (any interference with the person’s bodily integrity and liberty, including assault and battery, see p. 157) or other civil wrongs that the patient/client might suffer. When a patient/client suffers harm as a result of clinical negligence, they or the family can bring an action (claim) for negligence and compensation for the harm. In order to succeed in the claim, the three civil wrongs/torts must be met (see p. 155). The law recognizes duty of care between the patient and the nurse. When determining a breach in duty of care, the nurse’s conduct would be compared with what the ordinarily skilled nurse in that speciality would have done in the same circumstances, and what precautions would have been taken to avoid harm from known risks. Judges use the Bolam test when determining whether a nurse or other health professional has been negligent.

The Bolam test is a rule not only of substantive law in defining what amounts to adequate care, but is also used to determine standards of care. It is also a rule of evidence, indicating how a court determines whether adequate care has been given (Tingle & Cribb 2003). In determining the ‘legal standard’ of care, advice would be sought by lawyers acting for the nurse/NHS Trust, etc. and the claimant. If the case goes to court an ‘expert opinion’ is given by an expert witness. The judge would draw conclusions based on this standard of professional practice. It is important to note that the courts are more testing of expert evidence than in 1957.

These legal principles stem from the case of Bolam v Friern HMC [1957] 2 All ER 118 where a doctor administered electroconvulsive therapy to Mr Bolam without anaesthetic or muscle relaxants, resulting in Mr Bolam’s jaw being fractured. The judge, Mr Justice McNair, stated:

His comments later became known as the ‘Bolam test’, which also applies to nurses and other health professionals.

Various systems exist where defended cases of negligence can be fast tracked according to the size of the claim. However, at the time of writing, an NHS Redress Scheme is proposed, whereby certain cases involving errors with hospital care can be concluded without litigation. This is dependent upon the NHS Redress Bill becoming law. In addition, a Compensation Bill has been introduced in the House of Lords; it considers the regulation of claims management and an aspect of the law of negligence (for further information, see Government Bills 2005/06, available online at www.commonsleader.gov.uk/output/Page944.asp).

Criminal accountability

Criminal law is concerned with intent, i.e. the person intended to commit the crime, or was reckless or negligent about the consequences of their actions. The nurse is answerable to a criminal court when there is an allegation that a crime has been committed, e.g. when a grossly negligent act by a nurse results in a patient’s death. In such a case the nurse could be charged with manslaughter (unlawful killing of a human being where premeditation is absent) and face imprisonment. It is this type of situation that could result in the nurse being answerable in all four arenas of accountability, i.e. dismissal, action by the NMC, a civil claim as well as the criminal charge. For example, a nurse administers a drug (already drawn up in a syringe and left at the patient’s bedside) without further checking or verification, and as a result the patient dies. The drug was for oral administration and led to the patient’s death when given intravenously.

Consent in children

Children should always be consulted (subject to age and understanding) and kept informed about what is planned. The Children Act 1989 ensures children’s wishes and feelings are taken into account.

The age of consent to medical treatment varies across the UK:

(NMC 2004, Clause 3.9, p. 7)

There are three key points in relation to age of children that need to be emphasized. They are:

Maturity is a key factor and older children can have the maturity and capacity to make important decisions about their own medical treatment whereas others may not have reached that level of maturity at the same age. It is imperative that professionals assess maturity and the individual’s capacity to understand issues surrounding the proposed treatment and risks.

An important ruling regarding the competence of a child to consent to treatment is the Gillick competence (Box 6.9). In Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL) the House of Lords ruled that a child under 16 years of age can give legally effective consent to medical treatment if they have achieved ‘sufficient maturity and intelligence to enable him to understand fully what is proposed’. The test laid down in Gillick requires that the health professional must assess whether the particular child is competent to consent to a particular treatment (McHale & Tingle 2001).

Two important considerations – the child’s best interests and whether they have the mental capacity to exercise their rights responsibly – restrict children’s rights. Striking a balance between these two principles depends on the individual child and the situation.

In caring for children, the main priority for the nurse is to obtain valid consent from the appropriate person, i.e.the child or the person with parental responsibility. Usuallythis is the mother or father of very young children. However, this may not be possible, if for example a child is injured at school, in which case consent may be obtained from the teacher or child minder. The teacher would have the right to do what is ‘reasonable in all circumstances’ in safeguarding or promoting the child’s welfare (McHale & Tingle 2001). This is further complicated by whether the treatment is in the child’s best interests. Parental consent does not cover whatever treatment the parents believe to be in their child’s best interests and any treatment is ultimately dependent upon the healthcare professional’s assessment of what is appropriate for the child.

The law makes a distinction between a child’s right to consent to treatment and to refuse treatment. Refusal of treatment is a complex area. According to McHale and Tingle (2001, p. 117):

Parents and/or children may refuse consent for treatment. For example, a parent refuses consent and the child is unable due to critical illness. Consideration of the child’s best interests is vital. In this instance healthcare professionals should hesitate before giving treatment and consider the potential outcomes of giving the treatment or of withholding treatment. Often it is the urgency of the child’s condition that dictates justification for treatment without parental consent. For example, if the child is bleeding to death, then it is justifiable to treat, even in the face of parental opposition (McHale & Tingle 2001). In some cases the courts make the decision.

In other circumstances, refusal may be from both theparent and child, e.g. where the child and family are refusing a blood transfusion according to the teaching of their religion (Jehovah’s Witness). In such a situ-ation the outcomes and consequence of refusal must be made clear to both the child and parents. The dilemma for health professionals is if that refusal could lead to the death of that child. Authorization for treatment would be dependent upon the court’s decision.

Consent – people with learning disability or fluctuating mental capacity

There are situations where capacity may be in doubt. For example, a patient/client may not understand what they have been told or they may appear confused. The nurse may need to assess if the patient/client is capable of making a particular decision. This can be especially difficult in some patients/clients who have a learning disability or suffer from fluctuating mental capacity.

In the case of Re C [1994] All ER 819 the court upheld the right of a man with serious mental health problems to prevent amputation of his gangrenous foot in the future without his written consent. Thorpe. J. proposed a three-question test to establish if the patient/client possessed capacity. The three questions asked were:

(McHale & Tingle 2001).

A difficulty with the test used in Re C arises because capacity is dependent upon the information given (Grubb 1994). For example, a nurse provides a patient/client withcomplex information about a procedure requiring consent. If the information includes medical terms, the patientmay not understand the information given. However, if the patient/client is given a clear, simple explanation about the same procedure, in non-technical language that they can understand, then they may have possessed the necessary capacity to consent.

Nurses must carefully consider what they say and how it is said. The views of the patient/client and their relatives/carers are equally important in assessing the person’s capacity to understand and give consent. In addition, awareness that the patient may have the capacity to make one decision, but at the same time is incapable of making another, has led to the conclusion that such a test for capacity should be decision specific.

Providing care for someone with a learning disability may present some difficulties (Box 6.10).

The case described in Box 6.10 has important implications for the organizations and the people involved in the treatment and care of individuals who lack capacity to consent to treatment. The man’s rights had not been breached simply because he was admitted to hospital in his best interests rather than under the MHA 1983, but because procedural safeguards surrounding his admission had failed to protect him.

The recommendations from this case included proper assessments of those incapacitated and unable to make such decisions, alternatives to hospital or residential admis-sions, and that appropriate information be given to patients, family and carers.

Advance directive

An advance directive is a legally binding statement prepared in advance by a competent adult before they lose the mental capacity to make decisions. It allows the person to give or withhold consent at a point where their lack of capacity would normally exclude them (Tingle & Cribb 2003). An advance directive specifies the person’s wish to refuse some or all medical treatment and the circumstances when the refusal would apply (Box 6.12).

Advance directives must be clearly drafted, with full understanding of their implications, and cover circumstances which may occur (Tingle & Cribb 2003). They are subject to restrictive interpretation:

An advance directive can provide a useful guide as towhat treatment should not be given and in what circumstances. It is vital, however, to note that such a documentdoes not authorize an action that is unlawful, such as euthanasia. The Mental Capacity Act 2005 sets out rules about advance directives to refuse treatment (see p. 160) and will become the legal authority for advance directives in 2007. Many uncertainties surround their use, e.g. a person’s circumstances can change after the advance directive has been written. In some cases, years may pass before it is revisited (often at the time of illness/injury) and thus the validity of competence at the time of its writing may be questioned. Lack of specificity can present problems for healthcare professionals. The provision of lasting power of attorney may offer some resolutions (see ‘The Mental Capacity Act 2005’, p. 160).