Sources of law

If nurses are to understand the law, they must be able to find it. The two major sources of law are legislation and case law. Legislation includes both primary legislation, such as statutes or Acts of Parliament, and secondary legislation, such as regulations and by-laws. The government makes primary legislation, either at federal level or at state and territory level. The federal government makes legislation governing, for example, the operation of Medicare (Human Services (Medicare) Act 1973 (Cth)), whereas the state or territory governments make legislation governing, for example, the management of the hospitals and health services (Health Administration Act 1982 (NSW)), as well as the previously mentioned new nursing and midwifery regulation statute (Health Practitioner Regulation National Law 2009 (Qld)).

Case law as a source is usually referred to as common law. It consists of the individual decisions made by judicial decision makers, such as judges in courts of law and other legal hearings. It is sometimes called ‘interstitial law’ because, like interstitial fluid, it fills the gaps left by the legislative sources of law. Examples of common law include famous cases like the Australian High Court decision in Rogers v Whitaker (1992) in which the High Court determined the extent of the medical practitioner’s duty to advise a patient before performing surgery. At state level, case law includes both Tribunal decisions and appeals against the decisions of disciplinary tribunals, such as HCCC v Brown [2011] NSWNMT 1 (13 January 2011).

The law itself can be classified into the two main areas of criminal and civil law. Criminal law can be defined as ‘essentially rules of behaviour, backed up by the sanction of punishment, which govern our conduct in the community, having regard to other people and their property’ (Staunton and Chiarella, 2008). There are laws relating to misuse of controlled substances, such as drugs of addiction, which provide examples of criminal law that impinge on nursing practice, for example the Drugs Misuse Act 1986 (Qld). It is usually the role of the police to enforce criminal law and they have extensive powers to be able to do so.

In contrast, civil law deals with the resolution of private disputes between individuals and/or organisations. Civil law has many divisions within it, such as family law, industrial law, workers compensation and what is known in civil law as a common-law division. The common-law division deals with the most recognised common-law principles, such as contract law, negligence, defamation and nuisance (Staunton and Chiarella, 2008). Generally, violations of civil law cause harm or damage to people or property. Civil law remedies often involve payment of compensation, but other remedies, such as in the industrial courts, might involve reinstatement in a job.

Torts

A tort is a civil wrong committed against a person or property. The most important torts involving nurses are negligence and trespass to the person. Defamation is also of limited concern for nurses, although the need for confidentiality ought normally to override any risk of defamation. In relation to the purposes of the law of torts, it has been argued that ‘the first of these purposes is the pursuit of corrective justice. This entails the normative proposition that innocent people should not bear the financial burden of harm caused by the negligent actions of another. The second purpose relates to tort law’s role in setting standards of conduct’ (Grey, 2006:557). Whichever purpose is relevant, the actual outcome of a compensation claim is to shift the financial burden of injury from the one who suffered it to the one who was responsible for its cause.

Negligence

The tort of negligence relates to incidents where a person has suffered an injury to self or property as a result of another’s act or omission, which fell below an expected standard of care. For an action in negligence to succeed, the person complaining of the injury must prove, to a requisite standard of proof, that:

In negligence, it does not matter that the person who caused the injury did not mean to do so, because the purpose of the action is to recover damages for the injury.

For Australian nurses, although there are very few negligence cases involving nurses, the sorts of acts or omissions that might give rise to an action in negligence have included such diverse matters as:

It is important to realise that it is not the severity of the injury that determines the question of negligence (although it will be critical to the extent of the compensation), but rather the question of whether there was a departure from the proper standard of care that caused the patient’s injury. Even with the best care in the world, sometimes in healthcare there are tragic outcomes that are not foreseeable.

The best way for nurses to avoid being involved in actions related to negligence is to maintain proper standards of care, give safe healthcare that is within the limits of their own competence, communicate carefully and coherently with other healthcare providers, document assessments, interventions and evaluations fully, and develop good relationships with their patients. Good communication and relationships are critical in this regard. Failure in doctor–patient communications has been stated not only to lead to generalised patient dissatisfaction, but also to increase the risk of litigation should the patient suffer an injury or other adverse event while in hospital (Australian Commission for Safety and Quality in Health Care, 2007). Overall, the general public in Australia thinks very highly of nurses—in ethics and honesty polls nurses regularly come high on the list of people Australians trust. Nurses must justify this faith in them by ensuring that they deliver safe and appropriate nursing care.

Nursing students

Patients are entitled to receive a safe standard of care, regardless of whether the care is delivered by a registered or a student nurse. However, if students were not allowed to touch patients, they would never be able to learn nursing skills properly. Similarly, experienced nurses have a professional obligation to share their knowledge and expertise to assist less-experienced nurses to give optimal patient care. Both experienced nurses and nursing students are jointly responsible for ensuring that students are properly supervised and are never placed in a situation where the patient’s wellbeing might be at risk in any way. When students are learning a new clinical skill, the supervising clinician must ascertain whether or not the student is adequately prepared to undertake the procedure. They should have had previous practice in the nursing laboratories, and should be carefully supervised by an experienced and competent nurse, either from the faculty or from the clinical environment in which the student is working. If students feel uncertain for any reason, it is their responsibility to advise the supervising nurse of their concerns. Faculties of nursing need to make specific arrangements with facilities where students are placed regarding supervision and liability for any adverse events that may occur. All supervising staff, be they faculty or clinical, need to be very clear about their responsibilities towards the students and the patients in their care.

Many nursing students find work as assistants in nursing or as nurses’ aides when not attending classes. However, it is important to recognise that, although such employment will undoubtedly provide valuable experience in interpersonal skills and basic nursing care, the student is employed as an unqualified member of staff and must not take on responsibilities outside the scope of that employment, just because it is possible to do so by virtue of their educational program. In such a situation, the employing authority whose staff assigns such work to students may be liable for any adverse events that occur because of the delegation, as may the students themselves if they have practised outside the scope of their employment. Valuable advice on the delegation and acceptance of authority for registered nurses, midwives and students can be found in the decision-making frameworks for nurses and midwives endorsed by NMBA (NMBA, 2010b).

Standards of care

There are many documents that help nurses comprehend the standards of care they are expected to deliver. Some of these documents are more binding on nurses than others, some set minimum standards and others identify standards to which nurses ought to aspire in daily practice. The most important sets of standards for nursing students to be aware of are the competency standards for RNs, ENs and NPs developed by the Australian Nursing and Midwifery Council (ANMC) and adopted by NMBA in 2010 (Box 10-1; to be updated 2012). The NMBA national nursing competencies have been accepted by Australian nurse-registering authorities as the minimum competencies to be demonstrated by nurses for entry to the practice of nursing. The NMBA competencies, the role statements for RNs and ENs and the philosophy of nursing were adopted originally by all nurse-registering authorities in 1990 and it is expected that all nurses, registered and enrolled, will be able to demonstrate these competencies, with experienced nurses achieving higher standards than beginning practitioners. All educational nursing programs leading to registration or enrolment have to demonstrate that they enable students to meet these competencies, and all graduating nurses have to be able to meet these criteria to be eligible for entry to the register or roll. These standards have been used in courts of law to determine appropriate standards of practice, for example, HCCC v Kocsis [2011].

Other important documents for beginning practitioners are the Code of professional conduct for nurses in Australia (ANMC, 2008a, adopted by NMBA in 2010), which identifies the minimum standards for professional conduct, and the Code of ethics for nurses in Australia (ANMC, 2008b, adopted by NMBA in 2010), which provides guidelines for dealing with ethical dilemmas in clinical practice. In addition, as nurses begin to specialise and become more advanced in their practice, there are specialist standards developed by the specialist nursing organisations that advise nurses as to the level of care they are expected to provide. These, too, can be used to assess appropriate standards of practice in a court of law. Other sources of information regarding standards of care are policy and procedure manuals, government policy documents and circulars and specific standards set by the new NMBA that can be found on the NMBA website.

The best way for nurses to keep up to date with the standards required of them for professional practice is to keep abreast of the current literature, both professionally and in their field of practice, and to attend seminars and conferences relevant to their area of practice. This is particularly important today with the advent of evidence-based practice, and the commitment to it at federal level as a means of supporting quality and safety improvement (Australian Commission on Safety and Quality in Health Care, 2011). Nurses need to know and comply with the policies and procedures of their workplace. They must be aware of the common sources of adverse events, such as medication errors, falls and pressure-area injuries, and must be particularly vigilant regarding the potential for such adverse events to occur.

The need for careful documentation

If a nurse does become involved in any form of judicial hearing, there is no doubt that good-quality documentation will help the nurse defend the case. There have been cases in which the nursing records were so complete that the nurse’s account of the facts in dispute were accepted in preference to anyone else’s account (e.g. Briffet v Gander and District Hospital Board and ors (1992); Spasovic v Sydney Adventist Hospital [2003]). When the nursing records have been poor, however, the nurse’s accounts of any facts in dispute have often been discredited, to the detriment of the nurse (e.g. Laidlaw v Lion’s Gate Hospital (1969)).

Most states and territories have policies regarding the writing, storage and access to healthcare records and there are many texts that provide useful advice on documentation. Staunton and Chiarella (2008) provide a number of points, which provide sound advice for any nurse when writing records. These points are summarised in Box 10-2. There is no doubt that careful, well-written records significantly assist in good patient care, as they provide an accurate account of the care the patients have received, the patients’ condition and progress, and care they need to receive in the future. Such information helps clinicians assess patients accurately, evaluate the success or appropriateness of the care given to date, and plan and implement relevant future care. When patients receive well-documented, high-quality care, the likelihood of any complaints or litigation is significantly reduced.

FIGURE 10-1 Good documentation is essential.

Image: Life in View/Science Photo Library.

Confidentiality and privacy

The care and maintenance of medical records leads logically to questions of confidentiality and privacy. Although these two concepts are often used interchangeably, they have in fact quite distinct meanings and should be distinguished. ‘Confidentiality traditionally deals with protection of secrets and the integrity of relationships of trust, whereas privacy simply deals with control over the extent to which one is accessible to others’ (Evans, 2003). The expectations of both privacy and confidentiality give rise to legal obligations in Australia. In relation to privacy, the Privacy Act 1988 (amended 2001) requires Commonwealth agencies to conform to a set of 10 National Privacy Principles (NPPs) when dealing with personal information. These NPPs cover issues including collection, use, disclosure, quality and security of data, as well as issues such as access and openness. State and territory legislation also places similar obligations on their respective agencies, which include hospitals.

In relation to confidentiality, there is a range of different common-law and statutory mechanisms for imposing confidentiality obligations on nurses. At common law, there are expectations in contract (often the nurse’s employment contract will contain a confidentiality clause) and tort (the standard of care expected of a nurse would include a duty of confidentiality). Under statute, there are several statutory provisions at state and territory level that impose a duty of confidentiality. To illustrate, ‘human tissue and public health’ statutes (e.g. the Australian Capital Territory’s Transplantation and Anatomy Act 1978) in all states and territories impose a duty of confidentiality regarding particular pieces of sensitive information. Such a requirement seems quite obvious; after all, patients would not feel able to tell healthcare professionals their most intimate and private details if they could not expect that they would be treated in the strictest confidence. When nurses need to share information that patients have disclosed to them in confidence, for example with other healthcare professionals, they have to seek the patient’s permission to do so. Likewise, when another healthcare professional reveals information about a person to the nurse, the nurse must always treat the information as confidential unless advised otherwise.

There are, however, a limited number of occasions when healthcare professionals are required by law to disclose highly sensitive information, such as in cases of child abuse or notifiable diseases. The important thing to remember about these exceptions to the duty of confidentiality is that they are not general exceptions. The duty to notify confidential information is always limited to the specific people or authorities that need to know the information, and the extent of the information to be notified is also always limited to the very specific information that is required.

Assault and battery

The terms assault and battery might evoke concepts of incredibly violent acts, but they have rather different meanings in civil law, and form part of a group of torts known as ‘trespass to the person’. These tort laws exist mainly to protect an individual’s personal space, and to deliver compensation when that personal space is violated. Professor Fleming (1998:24) explains that the tort of battery is committed ‘by intentionally bringing about a harmful or offensive contact with the person of another. The action serves the dual purpose of affording protection to the individual, not only against bodily harm, but also against any interference with his person which is offensive to a reasonable sense of honour and dignity’. An assault occurs when an individual experiences the threat of such a battery occurring. Ian Kennedy (1984) made the observation that ‘the tort of battery exists to keep us free from unconsented- to touchings’.

It is quite clear that nurses may be involved in many procedures that could, in some circumstances, be an interference with the person and offensive to a reasonable sense of honour and dignity. But, of course, the important thing about the personal care nurses provide and the procedures they perform for patients is that these are normally carried out with the patient’s consent. This is the critical factor in relation to trespass to the person. If the patient consents to the touching or the contact, then there is no battery. Of course, it is important that the patient understands what that touching entails. For example, if a nurse asked to take a patient’s pulse and the patient agreed, expecting that the nurse was going to take the radial pulse, but the nurse had in mind the femoral pulse and proceeded to place their hand in the patient’s groin, the patient would be rightfully aggrieved that they had not been informed that such a personal intrusion was to occur. In the Australian High Court decision in Rogers v Whitaker (1992) at 633, it was held that ‘the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended’.

The right of the patient to receive information

Although this next discussion has been located with consent in this chapter, it is not related to the tort of battery but in fact to the tort of negligence; however, because obtaining consent and giving information often go together, it seems most appropriate to discuss it at this point. In the previously mentioned case of Rogers v Whitaker (1992), the High Court, after determining the requirements for consent, went on to say that in addition to receiving sufficient information to give consent, the patient also had the right to be warned of any material risks involved in a procedure. Failure to warn a patient of a material risk, which led to the patient suffering damages unexpectedly as a result of undergoing the procedure, would constitute negligent advice. The High Court defines material risk in two ways: ‘a risk is material if, in the circumstances of the particular case, a reasonable patient in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it’ (Rogers v Whitaker (1992), at 632, 634). Because these requirements seemed so broad (the risk that the ‘particular patient’ was not warned about in the Rogers v Whitaker case was a 1 in 14,000 risk), the National Health and Medical Research Council (NHMRC, 2004) developed guidelines for medical practitioners on giving information to patients. Section D of these guidelines sets out general principles about the information that doctors ought normally to discuss with patients. The guidelines also provide useful advice on how to communicate and how to identify a material risk (see Box 10-3).

Although these guidelines are directed at medical practitioners, they apply equally to a nurse or midwife who is about to perform a significant procedure on a patient. Indeed, they set the standard of care for information giving. It is important to remember that nurses are often significant secondary information givers, and they, too, need to take reasonable care to ensure that the information they give conforms to the standard established by the courts and the NHMRC. Nowadays, organisations have developed helpful information booklets for patients who are undergoing particular procedures or treatments, and although these are no substitute for direct communication, they are often a useful complement.

The patient’s right to refuse treatment

Because touching a patient without consent constitutes a battery, it follows that if a patient does not consent to be touched, treatment cannot proceed. In addition, patients who are being treated can revoke their consent at any time (refuse treatment) and, provided that they are competent to do so, i.e. they are of legal age and sound mind, they are perfectly entitled to do so. There are, however, certain statutory provisions (such as the Human Tissue Act 1985 (Tas.), s.21), created because of parents’ religious beliefs, which make it possible for a medical practitioner to override a parent’s wishes if the medical practitioner believes that the child’s life may be in danger. This is a complex area of law and requires further reading that cannot be provided in this chapter (see, for example, Staunton and Chiarella, 2008).

Dying with dignity

The consequences of patients refusing treatment can vary from simply seeking an alternative form of treatment, for example medical management rather than surgery, to choosing palliative care until death. Provided that patients understand the nature and consequences of their decisions, they are legally able to make such decisions, regardless of the consequences. Although at present in Australia there is no legal right to die per se, it seems obvious that this right to refuse treatment, whether situated in common law or expressly provided in statute, may lead to a person’s death. Problems arise because many people who find themselves in life-threatening situations have never contemplated the need to refuse treatment; for example, a young person in a car accident. Other people may no longer be mentally competent when the time comes when there may be different views on whether or not to continue treatment; and there may be others still who would not have wished to continue with treatment had they been given the choice, but there is no way of asking them, and their relatives are often reluctant to let go.

In the past, if a person was dying the major concerns were often how long the process would take and what it would be like. The prospect that death could be postponed by artificial life-support measures such as ventilators, inotropes, tube feeding and the like was undreamed of, as was the notion of cardiopulmonary resuscitation (CPR). Determining when a person ought to be ‘allowed’ to die was not an issue, as there came a stage (generally earlier rather than later) where medical and nursing measures to save life were exhausted and the person simply died. The medical and nursing staff did all that they could, and death took its natural course. This is of course still the case in many developing countries where there are simply neither the financial resources nor the equipment to prolong life or extend the dying process as we can in developed countries.

However, given our ability to maintain life-support measures for long periods of time, the dilemma for nurses and doctors is more pronounced, and questions such as ‘How far should we go in resuscitation?’, ‘When ought we to maintain life?’ and ‘If we can do it, should we do it?’ dominate the debate. In earlier times when CPR first became popular, it seemed that clinicians felt they ought to resuscitate almost everyone, regardless of age and diagnosis, and often irrespective of their wishes. If they were on an acute ward (and, indeed, sometimes even if they were not), the main responsibility was considered to be to save lives. Death was almost an admission of failure rather than a part of life, because the technology was available to at least try to do something about it.

On the whole at that time, decisions about resuscitation were automatic and rarely discussed with patients or their families beforehand. If any discussion did ensue, it was more likely to occur with the family than with the patient, whose wishes were often not taken into consideration. The feeling was that, because it was possible to prolong life, there was an obligation to try to do so.

The other problem, which went hand in hand with whether one ought to withhold life-sustaining treatment, was the question of whether to withdraw life-sustaining treatment after it had been instituted. One of the ways of managing this problem was the development of the legal concept of brain death, which was incorporated into human tissue transplantation legislation. Obviously, if someone were legally dead while on a life-support system, taking them off the life-support system did not kill them. Difficulties arose with people who were not brain dead, but in a persistent vegetative state. If life support were withdrawn, those people might well die—would that mean that they had been killed and, further, that the nursing staff or the medical staff had killed them?

It is not necessary to go into the intricacies of murder and manslaughter here, but there is no doubt that both acts and omissions that cause death have been held to be ways of committing murder. Thus, if one intentionally committed an act that caused a person’s death or omitted to do something and a person died because of this omission, arguably one could be charged with murder under the criminal law. There are, of course, many counter-arguments relating to issues of causation in cases of people who are terminally ill, but it has been a concern for healthcare professionals, and continues to be so (O’Neill and Peisah, 2011). When the emphasis was placed solely on the responsibility of the healthcare professionals to save life, the situation was at risk of becoming ridiculous. At best, it placed unrealistic expectations on healthcare, and at worst, it denied the reality of death as a normal part of the life cycle.

Two events occurred that brought a degree of sanity to the situation and restored the balance in practice somewhat. The first was the work of Elizabeth Kübler-Ross in relation to death and dying (Kübler-Ross, 1993). She enabled death to be viewed as a meaningful experience—dying with dignity—rather than as a medical failure. This approach enabled palliative care to become a more respectable area of practice. The second was the increasing recognition by the courts of patients’ rights and patient autonomy in the United States, Canada, England and Australia during the 1970s and 1980s. After all, as previously stated, if patients do not wish to be touched, they have a legal right not to be, which is protected by the tort of trespass to the person, specifically in civil actions in battery. At common law, however, the requirement for a patient’s consent to be touched can be overridden in an emergency. Also, the person has to be mentally competent in order to give or withhold that consent.

Because some terminally ill patients are no longer mentally able to withhold their consent at the time when they might wish to do so, statutory mechanisms have been developed in most states and territories to give legal effect to their wishes after they have ceased to be competent. South Australia pioneered this legislation with the Natural Death Act 1983. Basically, this statute enabled people who were terminally ill to give advance notice in writing of their intent to refuse extraordinary life-sustaining treatment. The statute gave definitions for both terminal illness and life-sustaining treatment, and there was some criticism of the legislation because of the narrowness of these definitions. The Northern Territory has enacted a similar model in its Natural Death Act 1988. The South Australian legislation has since been repealed in favour of the Consent to Medical Treatment and Palliative Care Act 1995.

In 1988 the Victorian parliament passed a revolutionary piece of legislation, the Medical Treatment Act 1988. The Act was much wider in its scope than was the original South Australian legislation and established the right of a patient to register, by certificate, a refusal to accept medical treatment. It also enacted a new offence of ‘medical trespass’ and provided protection for doctors and other healthcare professionals who act in reliance on a certificate. Although the term ‘medical treatment’ is defined within the legislation, the right to refuse treatment is unqualified to the extent that a person may refuse treatment generally or specifically but cannot refuse palliative care. The Act was amended in 1990 to enable a person to appoint an agent to carry out the wishes should the patient become incompetent, and has continued to have minor amendments since. Western Australia has recently amended the Guardianship and Administration Act 1990 (WA) and the Civil Liability Act 2002 (WA) to enable people to develop advance health directives under Part 9B.

Not all states have passed legislation enabling patients to make decisions in advance about their treatment. New South Wales only has guidelines in place, which means that patients have no statutory right to refuse treatment, decide issues or provide advance directives concerning their care when they are terminally ill; however, the common-law right to refuse treatment still exists for these people. The NSW Health Department has recently published two sets of guidelines: Using advance care directives (NSW) (2005a) and Guidelines for end-of-life care and decision-making (2005b). Both provide valuable advice to clinicians, patients and families on the law and practice surrounding end-of-life decision making. In addition there is now the opportunity for people in NSW to engage in advance care planning, which provides the opportunity for patients, families and clinical staff to engage in regular conversations about their wishes for end-of-life care at key milestones in their life.

Euthanasia, which was briefly legalised under the Northern Territory Rights of the Terminally Ill Act (1995), is no longer legal in any state or territory. Nurses who might wish to actively help a person die need to understand that they would currently be in breach of the criminal law. Although there may be compelling moral debates on this matter in the medical and nursing press at present, the legal situation is unambiguous.

Caring for the dying

In caring for the dying, the nurse’s responsibilities are to treat each patient’s wishes and concerns with respect and to ensure that they are able to discuss their wishes with the senior medical and nursing staff responsible for their care. Careful documentation of such discussions and their outcomes is critical. Good palliative care is essential in terms of pain and symptom relief. Nurses need to concentrate on the quality of life for each dying person and on helping them to resolve their own issues and concerns to enable them to die peacefully. Providing adequate and appropriate pain relief is considered to be a legitimate act, even if the drugs may be seen to have the double effect of shortening the patient’s life (Reid and others, 2008). It is a privilege to nurse the dying, and nurses should treat this time as a very important one for patients and their loved ones. When a patient dies, there may be special religious or cultural rituals relating to the care of the body, and nurses should take great care to acquaint themselves with the particular requirements for each patient.

Brain death and organ donation

Each state and territory has developed identical requirements for the management of brain death and organ donation to enable organ donors and organ recipients to be matched across state and territory boundaries. Each state and territory has a transplant coordinator, who has a record of all those waiting for organ transplants. When donor organs become available, it is the role of the transplant coordinator to ensure that the best available tissue match is made, which may require transporting the donor organs to very distant parts of Australia.

The criteria for the identification and pronouncement of brain death are very strict and the process is highly technical, and only senior medical practitioners with the requisite qualifications are able to make such a pronouncement. After the pronouncement of brain death, raising the question of organ donation must be handled with great sensitivity, and all involved must learn to manage the situation with great tact and compassion. Accuracy of information is critical, as is the need for confidentiality. There are courses for healthcare practitioners and others involved in healthcare to help them manage the care of donors and their families appropriately.

Nowadays, some people have already made the decision to donate some or all of their organs, and this information may be recorded on their driver’s licences. However, even when this is the case, the donor family may have difficulty coming to terms with the fact that their loved one is dead, and may wish to revoke the wishes of their loved one. Consideration of their needs is paramount at such a time.

The law of contract

Nursing practice has legal responsibilities. ‘A contract is an agreement that gives rise to rights and obligations between the parties to the agreement, and such rights and obligations will be protected by law’ (Staunton and Chiarella, 2008). Most people enter into numerous contracts every week of their lives, from buying goods at the supermarket to buying a new car or taking on a new job. Patients enter into a contract when they go into hospital or visit their doctor, although this is not usually spelt out in the case of public patients. Private patients are often far more aware of their contractual relationships with the hospital, as they have to sign forms agreeing to pay for the services they receive, albeit usually through their private healthcare funds. Nevertheless, in both public and private healthcare encounters, such contracts exist and bring with them express and implied terms and conditions with which the parties to the contract are expected to comply. A good example of such a term or condition is that a person is entitled to safe and appropriate care while in hospital. There are many rules relating to the law of contract that have been developed through common law, but there are an increasing number of statutory provisions governing the law of contract.

A very important form of contract for nurses is their contract of employment. This is covered by an area of law known as industrial law, which governs the relationships between employer and employee. Although this area of law goes well beyond the scope of this textbook, there are a range of common-law and statutory obligations that are imposed on the employee and employer that are worthy of documenting in this chapter (see Box 10-4).

In Australia, an industrial award, which is negotiated between the nurse’s trade union and the relevant employer, covers almost all nurses’ working conditions, whether public or private hospital authorities. The award can cover any aspect of employer–employee relations, from overtime to education. These awards are ratified by industrial commissions and are binding on the employers.

The nurse–doctor relationship

The nurse–doctor relationship has a great deal in common with the roles these professionals play. Whether it is termed comfort or counselling, good nurses and doctors do it. Whether it is termed preliminary patient assessment or provisional diagnosis, good nurses and doctors do it. But at some point in clinical management the two can and do diverge, with the doctors focusing on the treatment and the nurses focusing on the patient’s existence, and it is important to recognise that each has specific responsibilities and authority in their areas. Most of the time, the best interest of the patient (to be cured of whatever condition led them into the doctor’s care in the first place) unites nurses and doctors in their work. The doctors plan and order various forms of treatment, much of which is carried out by the nursing staff, who also monitor and optimise the quality of the patient’s existence while this therapy is going on. Usually, if the treatment is unsuccessful, both doctors and nurses are able to agree when ‘enough is enough’, and aggressive treatment is discontinued and palliative care is implemented. At this stage, the patient’s existence becomes the critical focus, and it is fair to say that doctors are often advised by nurses in such situations on what is the best course of treatment. Indeed, a key role for nurses is to report information about a patient’s progress to the medical staff, and nurses have often been severely criticised for failure to do so (Chiarella, 2002).

Issues that nurses highlight as being particularly problematic are related to feelings that the patient’s existence is being made so intolerable by the treatment and cure that it should stop, or that the treatment is not effecting a cure and is not likely to do so. This difficulty is compounded if in the nurse’s view the patient would have a better remaining existence if they were palliated, but the doctors wish to persist with the treatment. These are very difficult issues for nurses, as patients and their relatives quite understandably are hopeful of treatment and cure. But one of the characteristics of the nursing role is intimacy (Chiarella, 1990), and one of the conditions with which nurses are profoundly intimate is human suffering. When nurses have to witness the suffering of patients and relatives at an acutely intimate level, they often come to experience the suffering vicariously. This is both a disadvantage and an advantage. It is a disadvantage because sometimes they know how much the patient is suffering despite their best efforts and, because they cannot relieve the patient’s suffering, they do not wish them to have to go on. The patient’s suffering becomes the nurse’s suffering, and it is difficult for the nurse to bear. It is also difficult because so often the patients cannot give them any indication of their views; the nurses rely on the wishes of relatives and loved ones or the people responsible for their care. But it is also an advantage, because often nurses are so ‘in tune’ with their patients that they are able to bring the unique knowledge related to the extent of their experience to the situation. They know exactly how well skin integrity is maintained, how bruised they are from repeated injections, what happens to their blood pressure and pulse when they are moved, whether or not their pain is being managed effectively and how they tolerate suctioning. Such insights can be critical to patient management and nurses are entitled to insist that they be brought into the planning equation. It is important to be aware that if nurses feel strongly about a matter relating to patient care, they are entitled to speak strongly about it. In addition, if nurses cannot tolerate the patient’s suffering, they are entitled to ask for relief both for themselves and for the patient. It becomes extremely difficult, however, if the relatives and the doctors still have treatment and cure as the priority while only the nurses have quality of existence as the priority. In such a situation it may be necessary to accept that what is occurring is a difference of priority, rather than a case of right and wrong. But if the relatives are ambivalent and the nurses believe firmly that the doctor is wrong (this would be the exception rather than the rule), they should take their views as high as is necessary to have their concerns heard.

Nurses are under no obligation to obey any order that they believe, on reasonable grounds, might cause harm to the patient. Indeed, they are under an obligation to do no harm to the patient and should take any such concerns to their nursing supervisor.

It is also important that nurses take great care when receiving verbal orders from doctors regarding treatment, such as telephone orders or emergency orders. The proper course of action with all medical orders is that they be recorded in the notes or on the prescription sheet. When this is not possible, the nurse should carefully repeat the order to the doctor, preferably in the presence of a second person, and then record the order in the nursing record. The doctor should then verify that order within 24 hours.

Do not resuscitate orders

Particular care is needed with respect to CPR. CPR is an emergency procedure and as such is provided without requiring a patient’s consent. The purpose of CPR is to recommence cardiac output or respiration by artificial means until such time as the cause of the cardiac or respiratory arrest can be treated. It is important to recognise that it is not always successful, and for people with terminal illnesses it may not be the treatment of choice.

To institute CPR routinely for all patients begs the question of whether or not there are worse injuries than death; whether the indignity of resuscitation itself might be worse than allowing a person to die. The duty of care to the patient need not always involve prolonging life. Sometimes, to prolong life unnecessarily might of itself constitute an injury and, when the decision is not a balance of positive outcomes but rather a balance of negative outcomes, a dignified and peaceful death may be the better choice (Chapter 9).

The NSW Health Department’s Guidelines for end-of-life care and decision-making document is particularly helpful in advising how decisions to palliate, rather than to resuscitate, ought to be written. It recommends that the term ‘No cardiopulmonary resuscitation (No CPR)’ should be used as it is less ambiguous than the orders of ‘Do not resuscitate (DNR)’ or ‘Not for resuscitation (NFR)’.

The document explains that a ‘No CPR’ order may still mean that the patient receives maximum therapeutic care, short of CPR. The treating clinician and treating team should reassure the patient, or their family, that all comfort and other appropriate care will be provided. The use of the old term (DNR) was a negative concept, implying that there was really only one form of action, which was resuscitation. The term implied that staff members were doing nothing. But as all palliative care clinicians know, even after the oncologists or the surgeons announce that there is nothing more to be done, that is manifestly not so—there is much to be done. At this stage patients require palliative care, reconciliation, preparation and much loving and even laughing. The Guidelines for end-of-life care and decision-making take cognisance of that fact. They offer advice on both the content and the wording of documentation. It is critical that decisions not to resuscitate are clearly and unambiguously documented. The advice is extremely pragmatic and valuable, and acknowledges the valuable role that healthcare professionals take in caring for the dying (Box 10-5).

FIGURE 10-2 End-of-life decisions need to be explicit.

Image: Heny Allis/Science Photo Library.

Workload problems

Workload problems such as staff shortages or a nursing skill-mix inadequate for patient care are worrying for nurses, as these situations cause nurses to be concerned that they will not be able to deliver optimal-quality care or, worse, that something might go wrong, leading to an adverse event concerning a patient. However, at the time of writing financial pressures on the health services have unfortunately meant that, on occasion, nurses may face unavoidable shortages. As a result of pressure through the various industrial awards, each state and territory has developed strategies to address workload difficulties. When nurses are concerned that patient care might be at risk from staff shortages or incorrect skill-mix, it is their legal responsibility to bring the matter to the attention of the nursing supervisor. If an adverse event were to occur as a direct consequence of, say, a shortage of staff, and the nurse had foreseen that this might be the case but had not advised the supervisor, the nurse might be found to be negligent, particularly if the supervisor could have assigned staff from another ward to assist the nurse had the shortage been reported. Nursing management needs to know about staff shortages. It is possible that they will be able to reassign staff or organise agency staff; but if they are unaware of the situation, they can do nothing. If management is unable to find extra staff for the unit, the concerned nurse should keep a written record of the expression of concern, as it is evidence of the fact that the authorities were alerted to the problem, which is the expected behaviour of a reasonable nurse. If the nurse is faced with the situation where staffing is short and no further staff can be found, the responsibility is to prioritise those aspects of the patient’s care that are required for safety, and to ensure that such care is delivered over and above the other care that nurses would normally provide for the patient’s wellbeing and general hygiene. However difficult the situation may be, it is important for the nurse to remember not to allow frustration to affect the relationship with the patient.

Floating

Nurses are sometimes moved from the specialty in which they work to another area to alleviate staffing difficulties (sometimes called floating or relieving). Although management might be required to do this to provide safe staffing levels, it is important for all nurses to recognise the limitations of their competence and to advise management and other staff on the unit to which they are moved of their inexperience or lack of current knowledge about the specialty area. If management decides to move them despite this limitation, the nurse should make a personal file note of any objections and concerns. If nurses are regularly moved in a particular place of employment, management has a responsibility to educate staff about the specialties to which they are likely to be moved.

Community health nursing

Nurses work in various sites outside of institutionalised hospital settings. Included in community health settings are occupational and industrial sites where nurses provide preventive and ongoing primary care to workers. Nurses also work in public or community health when preventive services such as immunisation and child screening are provided in homes, schools and clinics. In such situations, nurses often work as autonomous practitioners and, as always, they are accountable for the judgments they make while working in a community setting. Community health nurses must work collaboratively with other healthcare team members to ensure that the care they provide is timely and appropriate.

It is important that nurses, especially those employed in community health settings, are aware of the wide range of laws affecting their practice. In addition to all the laws that have been discussed to date, they may be subject more directly to a range of public health legislation, such as reporting of suspected child abuse, notification of infectious diseases and intervention in relation to workplace safety. Community nurses working with families and young children are also expected to play a role in encouraging immunisation. Public health legislation is enacted at state, territory and federal level, with the Commonwealth alone having responsibility for 30 statutes that affect the health of the community (Bidmeade and Reynolds, 1997).

Emergency department

Nurses working in emergency departments are at the front line of hospital care. Triage nurses in particular have significant responsibilities for ensuring that patients who present to emergency are prioritised as to when and how quickly they see a medical practitioner. Emergency departments are also one of the areas where NPs are beginning to take on significant complementary roles to tackle waiting times and blocks to accessing hospital facilities (e.g. lack of beds, equipment or nursing staff).

The threat of violence can also be a problem for emergency nurses, as patients and relatives who present to emergency may be under the influence of alcohol or other drugs. Nurses working in emergency departments need to be aware of hospital protocols for dealing with aggressive and/or intoxicated patients. Another difficulty that emergency nurses can encounter is when patients wish to leave the emergency department without being fully screened or treated. Patients of sound mind who wish to leave are, of course, perfectly entitled to do so. However, if possible the nursing and/or medical staff should try to explain the possible consequences of leaving before their assessment or treatment is complete. Such premature departures need to be carefully documented by the staff involved. Incident reports must be used for such purposes.

Nursing children

There are several significant legal matters concerned with nursing children. When children are admitted to hospital, great care must be taken to ensure that they do not come to any harm. Treatment rooms and medications must be kept securely fastened, and wards must be secure to prevent children wandering off. In addition, visitors to children’s wards must be carefully screened to avoid potential abductions.

The most obvious legal issue is that the child does not possess legal capacity to consent to treatment, and each state and territory therefore has legislation governing the ability of a parent or guardian to consent on behalf of the child. As far as the law is concerned, a child is a person under the age of 18 years. However, most of the statutes provide for a child over the age of 16 years to give consent (see, for example, the South Australian Consent to Medical Treatment and Palliative Care Act 1995). In addition, there is a common-law acceptance that children under the age of 18 years can give consent providing they understand the nature and consequences of the treatment and it is in the best interests and wellbeing of the child to have the proposed treatment (Gillick v West Norfolk and Wisbech AHA (1985); Department of Health and Community Services (NT) v JWB (Marion’s case) (1992)).

There have also been instances where the wishes of the parent or guardian in relation to the treatment of a child have been overturned. The question of blood transfusions has already been discussed. A New South Wales case in 1982 overturned the decision of the guardian of a 15-year-old girl to refuse her a termination of pregnancy. The guardian was the then Minister for Youth and Community Services, the girl being a ward of the state; but a judge overturned his decision, finding that the termination was in the girl’s best interests (K v Minister for Youth and Community Services (1982)). As with all other emergency situations, there is no requirement for consent to treat a child in an emergency.

Another major issue when nursing children is the requirement to report suspected child abuse under the various state and territory child protection legislation. Child abuse invariably includes psychological as well as physical abuse, and neglect. Healthcare professionals are often under a mandatory statutory duty to report reasonable suspicion; but even where the statutory duty is discretionary, there are often government policies that impose a mandatory duty to report. As long as the report is made in good faith, the notification and any accompanying report are protected from civil action, such as defamation (Staunton and Chiarella, 2008). If child abuse is suspected, there are provisions to remove a child from the parents and to detain a child without parental consent for examination and treatment.

Medical/surgical nursing and gerontological nursing

Many people in acute medical and surgical wards are likely to be elderly. In addition, as a result of the decreased length of hospital stay and the high dependency levels of patients, many nursing homes resemble medical/surgical wards, as residents leave hospital earlier to return to their nursing homes and may still be unwell at this stage (Chapter 43). Over the past 20 years, the quality of care delivered to the elderly (gerontological nursing) has been a matter of concern and, while most acute hospitals are now voluntarily accredited by the Australian Council for Healthcare Standards (ACHS), legislation has been passed at both state and Commonwealth level to attempt to prescribe appropriate standards of care for the elderly in nursing homes. A significant amount of this prescription covers the involvement of qualified nurses in the delivery of nursing care. At Commonwealth level, for example, nursing care is defined as ‘nursing care given by or under the supervision of a registered nurse’ (Nursing Homes Assistance Act 1974, s.3). Likewise, under the Private Health Facilities Act 2008 of New South Wales, there are provisions to ensure that the director of nursing of an establishment is a suitably qualified registered nurse (s.37). Although some would argue that there is still some way to go in ensuring adequate care in nursing homes, governments have gone to quite extreme lengths to ensure comprehensive descriptions of what constitutes adequate care.

One of the most controversial issues when caring for the elderly is the question of restraint (Chapter 15). Many now believe that the use of restraint in the confused elderly is inappropriate and that with proper nursing care and adequately designed facilities it is much safer not to restrain the elderly in any way. Not all elderly people are cared for in appropriately designed facilities, however, and there are still occasions when the decision is made to restrain an elderly confused patient. Such decisions must be made with extreme care, as restraint is a significant infringement of one’s personal space and liberty and could constitute trespass to the person. The only valid reasons for restraining a patient are either to protect the patient from harm or to protect others from harm, including the staff. Restraint must never be used as a matter of convenience. NSW Health has produced an excellent guideline entitled Aged Care—Working with people with challenging behaviours in residential aged care facilities (2006). This document is available electronically and is most helpful both in avoiding the use of restraint and in using the safest and most effective way of restraint in acute and aged-care facilities.

Critical care nursing

Critical care nursing requires highly specialised skills in the use of advanced patient monitoring and the care of patients and relatives when the patient is critically ill. Staffing ratios in an intensive-care unit need to be significantly higher than in a general ward, often one nurse to one patient. One of the important issues for the intensive-care nurse is to remember not to become completely reliant on the machinery to judge the patient’s condition. There have been significant incidents when the patient was not progressing well and the machinery was faulty and did not record the patient’s deterioration—a careful examination of the patient rather than the machine would have revealed that there was a problem. Another important issue for nurses assigned to work in critical care is that they acknowledge the limitations of their competence, particularly if they are asked to relieve there due to shortage of staff.

Perioperative nursing

The term perioperative nursing encompasses anaesthetic and recovery room care, as well as operating room nursing (peri means ‘around’ or ‘beyond’, so refers to all nursing associated with a surgical operation). For anaesthetic and recovery room nurses, the comments are very similar to those for intensive-care nurses, since there are many similarities in the type of work that these nurses do. There is no doubt that perioperative nurses carry significant legal liability for the smooth running of the operative procedure, particularly in relation to the swab and instrument count. In a Queensland Supreme Court decision, it was held that the scrub nurse (i.e. the nurse scrubbed and gowned to assist the surgeon) was the ‘primarily responsible accounting party’ (Langley & anor v Glandore Pty Ltd (in Liq) & anor (1997)). Similarly, in Elliott v Bickerstaff [1999] the Court held that the surgeon was entitled to rely on the nurse’s sponge count. The Australian Confederation of Operating Room Nurses (ACORN) has developed standards for many of the procedures for which nurses are responsible in the operating rooms, and the swab and instrument count standards were those used to assess the requisite standard of care in Langley & anor v Glandore Pty Ltd (in Liq) & anor (1997).

Mental health nursing

Following the report of the inquiry into the tragedy of Chelmsford in the 1970s (Slattery, 1990), where psychiatric patients were given experimental treatments in unsafe conditions, leading to many deaths over a long period, most states and territories have enacted mental health legislation that pays careful regard to the rights of the mentally ill. Some statutes contain specific provisions that express the intent of parliament in relation to the care of the mentally ill. For example, the Mental Health Act 2000 (Qld), which deals with the care of mentally ill people, specifically states in s.4 that:

All the state and territory statutes make provision for voluntary and involuntary patients to be treated for mental illnesses, and pay careful attention to their ability to consent to treatment. Although there are situations identified within the statutes in which patients may be restrained and/or treated without their consent, these provisions usually relate only to situations in which patients pose an imminent threat to themselves or others. There are also special provisions in the statutes regarding some of the more controversial forms of therapy, such as electroconvulsive therapy or psychosurgery. Nurses who are working in mental health must be aware of the relevant legislation (see Staunton and Chiarella, 2008).

Hospital in the home and outreach services

One of the more recent developments in Australia is the concept of acutely ill patients being cared for at home (hospital in the home) by a combination of visiting specialist nurses and family or carers. Sometimes the nurses who visit the patients at home are hospital-based clinical specialists who have a dual role of specialist nursing care and family and patient education. In other situations, community nurse specialists who have formed a rapport with the patient and family while in hospital deliver the care. Still other services provide a combination of the two. Although many patients prefer to be cared for in this way and tremendous advances have occurred in the management even of ventilated patients at home, such arrangements place considerable strain on the family and carers, who must also be the focus of the outreach nurse’s attention during visits. Careful documentation and prompt referral in such situations are vital.

Remote area nursing

Because of the size of Australia, many nurses work in remote outposts or in communities where there are no medical staff living in the community. In such situations, the remote area nurse may be the only healthcare professional available to care for all medical and surgical emergencies. These nurses usually have access to medical advice via telephone (e.g. from the Royal Flying Doctor Service) and are able to evacuate patients by aeroplane in serious emergencies. However, most of the time these nurses are sole practitioners and have to be able to manage a wide range of conditions across the spectrum of specialties. Until recently, nurses in such situations often acted perilously close to the edge of the law, using clinical protocols and guidelines to enable them to prescribe, order diagnostic tests and make referrals when necessary. However, today most states and territories have either introduced or are working towards legislation to enable expert clinicians to become authorised as NPs. This will mean that they are legally able to prescribe a relevant range of medications, order pathology and radiology and make referrals necessary to their specialty area of practice and appropriate for the local conditions in which the clinician practises. The first statute to enable these legislative changes to occur was the Nurses Amendment (Nurse Practitioners) Act 1998 of New South Wales. Changes to the Poisons and Therapeutic Goods Act 1966 (NSW) now enable the director-general to authorise an NP, or a class of NPs, to possess, use, supply or prescribe any poison or restricted substance for the purposes of the practice of an NP’s profession (s.17A). All other jurisdictions have now legislated to provide for the regulation of NPs. In addition, since November 2010 privately practising NPs and eligible midwives now have access to items under the Medical Benefits Schedule (MBS) and can also write prescriptions for which their patients will receive subsidised medications under the Pharmaceutical Benefits Scheme (PBS).

Professional involvement of nurses

In all of the above specialties, it can be seen that nurses are expected to have specialist as well as good general nursing knowledge. Such knowledge is not gained unless nurses are professionally involved in ongoing education and debate. It is also critical for nurses to be involved in their professional and industrial organisations. These organisations influence the development of policy and law relating to nursing practice. If clinical nurses do not get involved, the law and policy that is developed will not reflect reality, or may advantage other professional groups to the detriment of nurses. Nurses must be willing to represent nursing and the patient’s perspective when appropriate on boards and committees. As a professional group, nurses spend more time directly with patients than any other group, and thus have an important perspective to offer on all aspects of healthcare.