Chapter 11 Legal implications in nursing practice in New Zealand
Mastery of content will enable you to:
• Recognise and define key terms and concepts.
• Explain the legal concepts that apply to nurses.
• Describe the legal responsibilities and obligations of nurses.
• Identify standards of care relevant for nurses.
• Define the legal aspects of nurse–patient and nurse–employer relationships.
• Provide examples of legal issues that arise in nursing practice.
The healthcare system in New Zealand is governed by many laws and legal frameworks. Nurses, like all other healthcare professionals, must practise safely and within the boundaries of the law. Nurses are held accountable for their practice by healthcare consumers, employers and the Nursing Council of New Zealand (NCNZ), as well as other agencies such as the Health and Disability Commissioner and the Health Practitioners Disciplinary Tribunal.
This chapter provides a synopsis of laws that nurses encounter in everyday nursing practice; while this is not an exhaustive list, the areas that are outlined and discussed should assist with identifying how the law in healthcare provides protection for the public and for healthcare professionals. Statutes and codes that form part of legal frameworks are written in rather formal language, and in some places in this chapter legal language is used in discussing various laws and codes. Critical thinking exercises at various points in the chapter should assist you to reflect on the meaning of laws and codes, and how they affect nursing practice. All cases and legislation (Acts) referred to within this chapter are listed with the references, along with the website where each of the Acts may be accessed. In addition, endnotes (indicated by a superscripted letter in the text) give additional information on particular points.
Regulation of nursing in New Zealand
Regulation of the nursing profession in New Zealand is governed by the Health Practitioners Competence Assurance Act 2003 (HPCAA). The enactment of the HPCAA repealed previous legislation governing healthcare professions. For nursing and midwifery this was the Nurses Act 1977 and its amendments and regulations, which had its origins in the Nurses Registration Act 1901. The principal purpose of the HPCAA is to ‘protect the health and safety of the public by providing mechanisms to ensure that health practitioners are competent and fit to practise their professions’. It does this by establishing regulatory authorities which register and regulate healthcare practitioners. Under the HPCAA, there are now separate authorities for nursing and midwifery. The NCNZ continues to be the authority for nurses, and the Midwifery Council regulates midwives. This chapter focuses on nursing.
The HPCAA requires regulatory authorities to prescribe scopes of practice, and outlines that a regulatory authority may describe a scope of practice in any way it thinks fit in one or more of the following ways:
The NCNZ has three scopes of practice with the following titles:
Each of these scopes of practice has associated competencies—Competencies for registered nurses (December 2007), Competencies for the enrolled nurse scope of practice (April 2010) and Competencies for the nurse practitioner scope of practice (September 2008) (Nursing Council of New Zealand, 2007, 2008, 2010a). The scope of practice and competencies for RNs are outlined in Box 11-1. All of these competencies may be revised from time to time.
BOX 11-1 NURSING COUNCIL OF NEW ZEALAND SCOPE OF PRACTICE AND COMPETENCIES FOR REGISTERED NURSES
REGISTERED NURSE SCOPE OF PRACTICE
Registered nurses utilise nursing knowledge and complex nursing judgment to assess health needs and provide care, and to advise and support people to manage their health. They practise independently and in collaboration with other health professionals, perform general nursing functions and delegate to and direct enrolled nurses, healthcare assistants and others. They provide comprehensive assessments to develop, implement, and evaluate an integrated plan of health care, and provide interventions that require substantial scientific and professional knowledge, skills and clinical decision making. This occurs in a range of settings in partnership with individuals, families, Whaānau and communities. Registered nurses may practise in a variety of clinical contexts depending on their education preparation and practice experience. Registered nurses may also use this expertise to manage, teach, evaluate and research nursing practice. Registered nurses are accountable for ensuring all health services they provide are consistant with their education and assessed competence, meet legislative requirements and are supported by appropriate standards. There will be conditions placed on the scope of practice of some registered nurses according to their qualifications or experience limiting them to a specific area of practice.
COMPETENCIES FOR REGISTERED NURSES
DOMAINS OF COMPETENCE
There are four domains of competence for the registered nurse scope of practice. Evidence of safety to practise as a registered nurse is demonstrated when the applicant meets the competencies within the following domains:
DOMAIN ONE: PROFESSIONAL RESPONSIBILITY
This domain contains competencies that relate to professional, legal and ethical responsibilities and cultural safety. These include being able to demonstrate knowledge and judgement and being accountable for own actions and decisions, while promoting an environment that maximises client safety, independence, quality of life and health.
DOMAIN TWO: MANAGEMENT OF NURSING CARE
This domain contains competencies related to client assessment and managing client care, which is responsive to the consumers’ needs, and which is supported by nursing knowledge and evidence based research.
DOMAIN THREE: INTERPERSONAL RELATIONSHIPS
This domain contains competencies related to interpersonal and therapeutic communication with health consumers, other nursing staff and interprofessional communication and documentation.
DOMAIN FOUR: INTERPROFESSIONAL HEALTH CARE & QUALITY IMPROVEMENT
This domain contains competencies to demonstrate that, as a member of the health care team, the nurse evaluates the effectiveness of care and promotes a nursing perspective within the interprofessional activities of the team.
Each of the domains of competence has associated indicators. Further information is available on the Nursing Council of New Zealand website, at www.nursingcouncil.org.nz/index.cfm/1,40,0,0,html/Registered-Nurse
From Nursing Council of New Zealand (NCNZ) 2007 Competencies for registered nurses. Wellington, NCNZ. Online. Available at www.nursingcouncil.org.nz/download/73/rn-comp.pdf 24 Mar 2012.
Continuing competence and annual practising certificates
The HPCAA requires regulatory authorities to ‘set standards of clinical competence, cultural competence, and ethical conduct to be observed by health practitioners of the profession’ (HPCAA 2003, s.118(i)). However, the HPCAA does not provide a definition of competence, as this is the responsibility of regulatory authorities (Vernon and others, 2012). The NCNZ defines competence as ‘the combination of skills, knowledge, attitudes, values and abilities that underpin effective performance as a nurse’ (Nursing Council of New Zealand, 2011a). As nurses work in a variety of roles, in order to determine whether a nurse requires a practising certificate the NCNZ has defined nursing practice as when a nurse is:
Using nursing knowledge in a direct relationship with clients or working in nursing management, nursing administration, nursing education, nursing research, nursing professional advice or nursing policy development roles, which impact on public safety (Nursing Council of New Zealand, 2010b).
The NCNZ has developed and implemented a Continuing Competence Framework which has been in place since 2004. This framework requires nurses to demonstrate annually that they remain competent and fit to practise. The three current requirements of the Continuing Competence Framework are:
• Evidence of ongoing professional practice. This refers to nursing practice according to the definition of practising—a minimum of 60 days or 450 hours within the preceding 3 years.
• Evidence of ongoing professional development. This refers to ongoing education—a minimum of 60 hours in the last 3 years.
• Evidence of meeting the Council’s competencies for the nurse scope of practice. This involves a self-declaration that states the nurse meets the Council’s competencies for their scope of practice (Vernon and others, 2011).
Each year the NCNZ requires 5% of nurses applying for practising certificates to complete an audit. Nurses who are enrolled in employer Professional Development and Recognition Programme (PDRP) recertification programs which are approved by the NCNZ are not selected for audit. Nurses who have not been practising for more than 3 years or have not completed the required amount of professional development will be assessed individually and may be issued with an interim practising certificate until all requirements are met.
FIGURE 11-1 Nurses need to demonstrate annually that they remain competent and fit to practise.
Image: T&L/BSIP/Corbis.
Under the HPCAA, regulatory authorities may decline to issue an annual practising certificate if it is believed that an applicant:
• has failed to maintain the required standard of competence;
• has failed to comply with a condition included in the scope of practice;
• has failed to satisfactorily complete a competence program ordered by the authority;
• has not held a practising certificate or practised lawfully for the preceding 3 years; or
• is unable to perform the functions required for the applicant’s profession because of some mental or physical condition. (HPCAA 2003, s.12(4))
The required standard of competence is defined as ‘the standard of competence reasonably to be expected of a health practitioner practising within that health practitioner’s scope of practice’ (HPCAA 2003, s.5(1)).
Registration of nurses from Australia or other countries
The Trans Tasman Mutual Recognition Act 1997 (TTMRA), which came into force on 1 May 1998, allows the reciprocal regulation of nurses and midwives in New Zealand and Australian states. Under the TTMRA, Australian nurses who wish to register in New Zealand must give written notice to the NCNZ that they wish to be registered in New Zealand. Once the relevant registration authority has received an application, it has 1 month to confirm registration and decide whether to impose conditions. Conditions may be imposed for the purpose of:
(a)achieving equivalence of occupation;
(b) imposing on the applicant’s NZ registration a condition that applies to the applicant’s registration in Australia; or
(c) any other purpose relating to the implementation of the TTMRA principles in respect of occupations.
If the registration of an Australian nurse is cancelled or suspended, or is subject to a condition on disciplinary grounds or because of pending or completed criminal, civil or disciplinary proceedings, their New Zealand registration is affected in the same way. The New Zealand authority may reinstate registration or waive conditions if it is satisfied that it is appropriate to do so in the circumstances.
For any nurses other than those registered under the TTMRA, the standards applied as entry criteria for New Zealand registration are qualifications equivalent to New Zealand qualifications. The NCNZ must be satisfied that applicants have the required New Zealand competencies for their scope of practice.
Competence notifications and reviews
A healthcare practitioner may voluntarily notify the relevant authority if they consider that another healthcare practitioner (not necessarily of the same profession) poses a risk of harm to the public by practising below the required standard of competence (HPCAA 2003, s.34). The Health and Disability Commissioner (see below) is required to notify the relevant authority if they have reason to believe that the practitioner may pose a risk to the public. Employers are required to make a notification if the practitioner has resigned or has been dismissed for reasons relating to competence. There is no mandatory requirement on other practitioners, but the HPCAA provides authority to make a notification and protection from liability as long as the notification is made in good faith.
Once a competence notification has been received, the registration authority must make inquiries into the notification to determine whether or not a competence review should take place. The NCNZ generally asks for further information from the nurse and the employer to enable it to make this assessment. If there are reasonable grounds for believing that the practitioner poses a risk of serious harm to the public, the Act allows the relevant authority to suspend the practitioner pending a review (HPCAA 2003, s.39). Information about the NCNZ’s review process is available on its website (see Online resources).
Health notifications
Section 48 of the HPCAA requires any healthcare practitioner with reason to believe that another healthcare practitioner (whether of the same profession or not) is unable to practise because of a mental or physical condition to notify the relevant authority. A mental or physical condition includes a condition or impairment caused by alcohol or drug abuse.
Practitioners who have a health condition are required to undergo an examination by a medical practitioner, who provides a report for the regulatory authority. The authority then meets with the practitioner to discuss that report. The authority’s role is to determine whether the practitioner has a mental or physical condition that means they are unable to perform the functions of nursing or midwifery. The authority may suspend the practitioner, include conditions in their scope of practice or take no further action on the notification. Any suspension or conditions may be revoked or reviewed once the authority is satisfied that it is appropriate and in the public interest to do so. Information about the NZNZ’s health process is available on its website (see Online resources).
Complaints about nurses
Complaints about nurses may result in disciplinary action. Nurses are disciplined under the HPCAA in the same way as all other healthcare practitioners. If the Registrar of the NCNZ receives a complaint about a nurse and the conduct of that nurse has affected a healthcare consumer, the complaint must be referred to the Health and Disability Commissioner under the Health and Disability Commissioner Act 1994 (HDCA). The Commissioner may decide to investigate the conduct or refer the matter to the relevant authority if the appropriateness of the conduct, fitness to practise (health) or competence of the practitioner is in doubt.
If a complaint has been referred to the Registrar of the NCNZ by the Health and Disability Commissioner, or the conduct does not affect a healthcare consumer, it may be referred to a Professional Conduct Committee (PCC). PCCs also consider court convictions and other grounds of discipline (see below). Court convictions that are considered by PCCs are those where the penalty for the offence is 3 months imprisonment or an offence against the legislation listed in the HPCAA (HPCAA s.67). A PCC will investigate the complaint and provide the practitioner with an opportunity to respond in person and/or in writing to the information gathered during that investigation. The PCC will then decide whether or not there is sufficient evidence of an offence and whether the conduct is sufficiently serious to lay a charge. Charges are heard before the Health Practitioners Disciplinary Tribunal (HPDT). A PCC may also make recommendations to refer a practitioner for competence review, or to be considered under the health process, or that conditions be included in the practitioner’s scope of practice. It may also recommend that the complaint is referred to the police or for conciliation or that the practitioner is counselled (receives a letter of education). Information about the NCNZ’s disciplinary processes is available in the publication Complaints and discipline process on its website (see Online resources).
The Health Practitioners Competence Assurance Act 2003 allows some conduct that falls below a standard expected of a registered nurse to be managed through the remedial competence review process rather than by a disciplinary process. Think about the following questions:
Health and Disability Commissioner
Reference has been made above to the Health and Disability Commissioner. This role was established in 1994 with the enactment of the HDCA (see Burgess, 2008), and provided for the 1996 Code of Health and Disability Services Consumers’ Rights (the Code of Rights). All healthcare practitioners are called ‘providers’ under the HDCA and have a duty to give effect to the rights of patients (consumers). These rights are codified in the Code of Rights, which is a regulation made under the HDCA (Box 11-2). This Code may be revised from time to time. The Commissioner publishes an annual report which explains the Commissioner’s role and discusses complaints and their resolution from the previous year (see Online resources).
BOX 11-2 CODE OF HEALTH AND DISABILITY CONSUMERS’ RIGHTS
There are ten rights in the Code of Health and Disability Consumers’ Rights:
Right 1. Right to be treated with respect.
Right 2. Right to freedom from discrimination, coercion, harassment and exploitation.
Right 3. Right to dignity and independence.
Right 4. Right to services of an appropriate standard.
Right 5. Right to effective communication.
Right 6. Right to be fully informed.
Right 7. Right to make an informed choice and give informed consent.
Full details about the Code of Rights is located on the website of the Health and Disability Commissioner website, available at www.hdc.org.nz/media/24833/leaflet%20code%20of%20rights.pdf
When, after investigation, the Commissioner is of the opinion that the nurse is in breach of the Code of Rights, recommendations may be made by the Commissioner to the provider or the matter may be referred to the Director of Proceedings (DP). The DP has discretion as to whether to lay a charge of professional misconduct before the HPDT and/or to bring proceedings against a healthcare practitioner in the Human Rights Review Tribunal. The Human Rights Review Tribunal has the power to award up to $NZ200,000 compensation to a patient/consumer whose rights under the Code of Rights have been breached. If the injury is covered under the Injury Prevention, Rehabilitation and Compensation Act 2001, this compensation may be barred unless there was flagrant disregard of a consumer’s rights.
Health Practitioners Disciplinary Tribunal
The HPCAA established a single multidisciplinary tribunal (HPDT) that is separate to the registration authorities. When a disciplinary charge is being considered, the Tribunal will consist of a legal chair, a layperson and three registered members of the relevant healthcare profession. Disciplinary charges relate to professional misconduct, which is defined in the HPCAA as:
• any act or omission that amounts to malpractice or negligence in the scope of practice the practitioner is registered in at the time the conduct occurred;
• any act or omission that has brought or was likely to bring discredit to the profession that the health practitioner practised at the time that the conduct occurred. (HPCAA 2003, s.100(1))a
Negligence and malpractice have been interpreted as conduct in the performance of a practitioner’s professional role, and arise when a practitioner has breached a professional duty. The test is an objective one and the guide is the standards applied by competent, ethical and responsible practitioners. For a finding of professional misconduct to be made, the behaviour must fall well short of conduct that is considered acceptable and must not be inadvertent error, oversight or carelessness.
In order to satisfy a charge of bringing discredit on the profession, there has to be a professional aspect to the conduct complained of. The complaint must refer to conduct which affects professional or public confidence, and may include behaviours related to the practitioner’s work or professional standing. The HPDT’s role in considering professional misconduct charges is to determine whether the conduct that is the subject of the charge is proved and that it amounts to professional misconduct. The onus of proof is on the PCC or the DP who prosecutes the charge, and the standard of proof is the civil standard—the balance of probabilities.
Other grounds on which a nurse may be disciplined are if they have been convicted of an offence that reflects adversely on fitness to practise, have practised without holding a current practising certificate, have performed a healthcare service outside their scope of practice, have failed to observe any conditions included in their scope of practice or have breached an order of the HPDT.
The purpose of disciplinary proceedings is to:
• enforce high standards of propriety and professional conduct
• ensure that no person who is unfit because of their conduct is permitted to practise
• protect the public and the profession against practitioners who are unfit to practise
• enable the profession to ensure that the conduct of members conforms to the standards generally expected of them.
The HPDT has a number of penalties available to it:
• cancellation of registration
• suspension of registration (3 years)
• inclusion of conditions in a practitioner’s scope of practice (for 3 years after commencing practice after the order is made)
• awarding costs and expenses of investigation, prosecution and hearing.
Decisions made by the HPDT are available on its website (see Online resources).
Sources of law
Most law affecting healthcare practitioners in New Zealand is found in legislation (Box 11-3).
Most law affecting healthcare practitioners in New Zealand is found in legislation, namely:
• Health and Disability Commissioner Act 1994
• Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulation 1996
• Health Information Privacy Code 1994
• Health Practitioners Competence Assurance Act 2003
• Injury Prevention Rehabilitation and Compensation Act 2001
• Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
• Medicines Act 1981 and its Regulations
• Mental Health (Compulsory Assessment and Treatment) Act 1992
• New Zealand Bill of Rights Act 1990
New Zealand laws relating to the misuse of controlled substances and drugs include the Misuse of Drugs Act 1975 and the Medicines Act 1981 and Regulations. At the time of writing, there is a Medicines Amendment Bill before the New Zealand parliament which, among other things, proposes to make changes to current prescribing law.
Legal liability in nursing
In Australia, parties may seek to recover compensation for personal injury through civil actions in tort, usually in negligence. However, New Zealand law generally prohibits claimants seeking compensation for personal injury through a civil action in the courts. This is because it has a no-fault compensation scheme administered by the Accident Compensation Corporation (ACC). If claimants are covered for their personal injury by the ACC legislation—currently found in the Injury Prevention, Rehabilitation and Compensation Act 2001 (IPRCA)—they are then barred from seeking compensation through any other means.
Treatment injury
Under changes made to the IPRCA that came into force on 1 July 2005, treatment injury is personal injury suffered by a person caused by treatment (previously referred to as ‘medical misadventure’). Personal injury caused ‘wholly or substantially by a gradual process, disease or infection’ is excluded from the definitions of personal injury. However, if the injury is a treatment injury, the development or progression of a disease or infection may amount to ‘physical injury’ where it is caused by treatment or by the failure to diagnose or treat a physical condition. There is now no requirement to find fault by a registered healthcare professional for cover to be provided, which brings medical misadventure in line with other accidents under the scheme. However, if the ACC believes that there is a risk of harm to the public by a registered or unregulated healthcare practitioner as a result of information gathered in the course of assessing claims, it must report that risk to the relevant authorities, which includes regulatory authorities. The ACC gains assistance in determining whether or not it should report events from the New Zealand Ministry of Health’s sentinel/serious events threshold (Ministry of Health, 2001).
Exemplary damages
ACC legislation does not bar claims for exemplary (punitive) damages. Exemplary damages may be awarded where the conduct that led to the injury was ‘outrageous’ and calls for punishment. This has been interpreted to include conduct that was intentional wrongdoing or conscious recklessness, or where the practitioner has departed so far and so flagrantly from professional standards or standards of care that the conduct calls for punishment.
Torts
A tort deals with a wrong committed by one person against another. In healthcare, issues of negligence, defamation, and assault and battery are important for nurses to be aware of. While these may seem to be alarming terms in relation to nursing practice, they are managed through mechanisms and processes, such as standards of care, confidentiality and privacy, and informed-consent processes.
Negligence
The test for negligence at common law is that a duty to take reasonable care is owed; that the duty was breached; that some loss or harm occurred; and that the loss or harm was caused by the breach. In Staite v Psychologists Board,b Young J stated that he did not believe professional negligence, in the sense of simple carelessness, could be invoked to support a disciplinary charge in circumstances where an action for ‘professional negligence’ could not have been brought because the law would not have recognised a duty to take reasonable care. This duty of care, to the standard of the reasonable practitioner, is a requisite element of a negligence action.
Standards of care
As mentioned earlier, under the HPCAA 2003 the NCNZ is required to set standards of ‘clinical competence, cultural competence and ethical conduct’ (HPCAA 2003, s.118(i)). Guidelines as to what is reasonable and the minimum standards of practice and/or care for nurses can be found in the publications listed in Box 11-4. These standards and guidelines may be revised from time to time.
BOX 11-4 GUIDELINES AND STANDARDS FOR NURSES
• Competencies for the enrolled nurse scope of practice (April 2010), www.nursingcouncil.org.nz/download/98/en-competencies-april10.pdf
• Competencies for registered nurses (December 2007), www.nursingcouncil.org.nz/download/98/rn-comp.pdf
• Competencies for the nurse practitioner scope of practice (September 2008), www.nursingcouncil.org.nz/download/98/np-sept09.pdf
• Guidelines for cultural safety, the Treaty of Waitangi and Māri health in nursing education and practice (July 2011), www.nursingcouncil.org.nz/download/97/cultural-safety11.pdf
• Code of conduct for nurses (November 2009; under review in 2012), www.nursingcouncil.org.nz/download/48/code-of-conduct-nov09.pdf
• New Zealand Nurses Organisation’s Code of ethics (2010), www.nzno.org.nz/Portals/0/publications/Code%20of%20Ethics%202010.pdf
It is important for nurses to understand that any or all of these guidelines may be referred to by the Health and Disability Commissioner or in proceedings in respect of complaints against nurses before the HPDT (refer to the HPDT website for further examples).
The need for careful documentation
The Health Information Privacy Code 1994 issued under the Privacy Act 1993 regulates health information.c In particular, Rule 8 of the Health Information Privacy Code provides that a health agency holding health information must not use that information ‘without taking such steps as are in the circumstances reasonable to ensure that, having regard to the purpose for which the information is proposed to be used, the information is up-to-date, accurate, complete, relevant and not misleading’.d
Documentation is a significant component of nursing practice. It is important to be aware that health records may be used in investigations of complaints by a number of authorities, including the Health and Disability Commissioner, the Privacy Commissioner, regulatory authorities and the police. Health records may also be obtained through the Official Information Act 1982, and through subpoena (Burgess, 2008).
The New Zealand Nurses Organisation (2003) has produced some useful guidelines on the need for careful documentation (see Online resources).
Confidentiality and privacy
The principles pertaining to confidentiality and privacy are found in common law and statute, and both apply in New Zealand. The law relating to disclosure of health information and a patient’s right to protection against interference with their privacy is contained in the Health Information Privacy Code 1994 and later commentary. That Code is subject to all other legislation and there are numerous statutory provisions which require that health information must be made available and/or disclosed (ss. 22C, 22D, 22F, 22G of the Health Act 1956, among others).e Other statutes also require practitioners to disclose health information when child abuse is suspected; see sections 49, 52, 53 and 56 of the Children, Young Persons and Their Families Act 1989.
Health Information Privacy Code
In general, this Code requires health information to be collected for lawful and necessary purposes from the individual concerned. At the time when it is collected, the individual must be made aware that the information is being collected, the purpose of the collection and who will receive the information.
Health information must be collected without unreasonable intrusion on the individual’s personal affairs, and must be collected lawfully and fairly in a situation in which that person feels comfortable. The information must be protected by reasonable safeguards against loss, unauthorised access, modification, disclosure and other misuse, and disposed of in a manner that preserves the individual’s privacy. Where information can be readily retrieved, the individual may be entitled to have access to that information, and may request correction of that information. Information must not be kept longer than is necessary for the purposes for which it is lawfully used and, if collected for one purpose, should not be used for another unless authorised or it is necessary because of a threat to public or individual health and safety. Unique identifiers (numbers) may only be assigned where necessary to enable a health agency to carry out its functions more efficiently. All health information is subject to the limits on disclosure imposed by the Code for a 20-year period from the date of death.
Complaints about breaches of the Health Information Privacy Code may be made to the Privacy Commissioner. The Commissioner may investigate the complaint if it falls within their jurisdiction and form a provisional opinion as to whether an interference with privacy has occurred. Any practitioner who has a complaint against them is provided with the opportunity to provide a response to the complaint before the Commissioner reaches a provisional opinion. The parties are also invited to respond to the provisional opinion and to reach a settlement about the alleged breach. The Commissioner may then make a final opinion, which is advisory only, and may make recommendations. The Privacy Commissioner may refer the matter to the Proceedings Commissioner who may issue proceedings in the Human Rights Review Tribunal if a settlement cannot be reached. If the Tribunal is satisfied on the civil standard that a breach of privacy has occurred, it may make orders, declarations or award damages and costs. It has the power to award damages up to $NZ200,000. More information on the Privacy Commissioner and the Health Information Privacy Code is available on the Privacy Commissioner’s website (see Online resources).
The Health (Retention of Health Information) Regulations 1996 impose obligations on practitioners to retain health records/information for a minimum period of 10 years from the last date of treatment or care. The Public Records Act 2005 may require some health records to be transferred to Archives New Zealand for future reference.
Privileged communications
Communications made by a patient to a healthcare practitioner for the purposes of treatment or examination or where that person is caring for the patient are legally protected by confidentiality and privacy law only to a certain extent, and there are numerous exceptions to the general confidentiality rule. However, in the case of communications made to a medical practitioner or clinical psychologist, there are some instances where the confidentiality of such communications is totally protected and the medical practitioner or clinical psychologist cannot disclose them even in court (Evidence Act 2006, s.59).
Confidentiality can be complex in nursing practice, and there are numerous challenges that arise when nurses need to maintain confidentiality. Discuss the following with a colleague. What do you think the challenges of maintaining confidentiality might be in situations where:
1. You are in the staff cafeteria and overhear colleagues discussing confidential information about a well known local identity.
2. You are asked by a colleague who works in another area of the hospital in which you are working for information about a patient for whom you are caring.
3. A relative asks you for information about the prognosis for a patient for whom you are caring.
Obtaining consent
Nurses provide a range of care and treatment in nurse–patient interactions. Usually, verbal consent is given when a nurse explains an intended action or procedure. If the nurse does not explain and/or provide the opportunity for a patient to ask questions about what the nurse is going to do and if, for example, this might be painful, informed consent could arguably be invalid. In New Zealand, the requirements for obtaining consent are found in Rights 5, 6 and 7 of the Code of Rights. In particular, Right 7(1) provides that consumers have a right to make an informed choice and give informed consent except where any enactment, common law or provision in the Code of Rights provides otherwise. A consumer is presumed to be competent to make an informed choice and give informed consent unless there are reasonable grounds to believe that they are not competent. Where a consumer has diminished competence, they have the right to make an informed choice and give consent to the extent appropriate to their level of competence.
FIGURE 11-2 Nurses need a sound understanding of informed consent in relation to their practice.
Image: Stewart Cohen/Pam Ostrow/Blend Image/Corbis.
If a consumer is not competent, and there is no other person entitled to consent on their behalf, services can be provided where they are in the best interest of the consumer and reasonable steps have been taken to ascertain the consumer’s views, and where the provider believes the services to be consistent with any choice the consumer would have made or are views of other suitable people interested in the consumer’s welfare (Right 7(4)). Where a consumer is not capable of consenting on their own behalf, there is no common-law rule that enables a spouse or next-of-kin to give effective consent on their behalf. Under the Protection of Personal and Property Rights Act 1988 (the PPPRA), a Family Court may appoint a welfare guardian for an incapacitated adult if the consumer wholly lacks the capacity to make or communicate decisions and if the appointment is the only satisfactory way to ensure appropriate decisions are made. The PPPRA also provides for the appointment of an enduring power of attorney, where a competent person is able to confer powers to an ‘attorney’ which continue in the event that the person becomes incapacitated. This power in relation to personal care and welfare only comes into force when the consumer becomes incapacitated.
The right of the patient/consumer to receive information
Right 6(1) of the Code of Rights entitles the consumer to receive information that a reasonable person in the circumstances would expect to receive. That information must include:
• an explanation of their condition
• an explanation of the options available; namely assessment of expected risks, side effects, benefits and costs of each option
• advice of the estimated time within which actual services will be provided
• notification of any proposed research or teaching
• any other information required by legal, professional, ethical and other relevant standards
Right 6(3) entitles the consumer to receive information on the provider’s identity and qualifications and recommendations as to how to obtain another opinion and test results. Consumers are entitled to receive a written summary of the information upon request.
The right to refuse treatment
In New Zealand, a patient’s ‘right to refuse any medical treatment’ is enshrined in s.11 of the New Zealand Bill of Rights Act 1990. Right 7(7) of the Code of Rights provides consumers with ‘the right to refuse services and withdraw consent to services’. In addition, the Code of Rights provides that consumers have a right to have services provided in a manner that respects the dignity and independence of the individual (Right 3). Consumers can also use an advance directive in accordance with the common law if they so wish (Right 7(5)). The right to refuse treatment should be an informed choice, so full information about the likely outcome of not receiving the treatment should be provided.
The law relating to refusal of services on behalf of someone who is not competent to make a choice, however, is not as straightforward. In most cases, the courts will override parents who refuse life-prolonging treatment for their children. For example, in the case of Healthcare Otago v Williams-Holloway,f parents refused treatment for their three-year-old son to receive his third cycle of chemotherapy to treat a neuroblastoma of the jaw. The High Court intervened, and by order placed the child in the custody of the Director-General of Social Welfare and issued a warrant authorising police or social welfare authorities to locate and apprehend the child for the purpose of treatment (the boy had been taken into hiding by his parents).
Use of human tissue and organ donation
The legislation regulating the removal, use and transplantation of body parts in New Zealand can be found in the Human Tissue Act 2008, the Code of Rights and common law. This law is complex and includes addressing sensitive cultural and spiritual needs, values and beliefs. It is suggested that interested readers refer to the link given in Online resources. Keenan (2010) also discusses the issues surrounding the use of human tissue and organ donation.
Legal relationships in relation to employment
The law of contract
Contract between a healthcare practitioner and the patient
The contract between provider and patient/consumer is set out in Right 4 of the Code of Rights, which provides consumers with a legal right to services of an appropriate standard. This includes the right to have services provided with reasonable skill and care that comply with legal, professional, ethical and relevant standards, which are consistent with the consumer’s needs and which are provided in a manner that minimises the potential harm to, and optimises the quality of life of, the consumer (Rights 4(1), 4(2), 4(3) and 4(4)). Consumers also have the right to cooperation among providers to ensure quality and continuity of services (Right 4(5)).
Additional obligations placed on healthcare professionals, including nurses, in respect of the care of consumers are:
• the right to be treated with respect (Right 1)
• the right to freedom from discrimination, coercion, harassment and exploitation (Right 2)
Nurses also have an obligation to maintain clear professional boundaries. The NCNZ is in the process of developing a guideline for this, in association with a revised Code of conduct for nurses.
Employment contracts and related matters
Employed nurses in New Zealand have employment agreements with their employers that are governed by the Employment Relations Act 2000 (ERA), the Holidays Act 2003, the Parental Leave and Employment Protection Act 1987, the Minimum Wages Act 1983 and the Wages Protection Act 1983. The ERA provides for two types of employment agreement—an individual employment agreement and a collective employment agreement. Collective employment agreements can be negotiated only through a registered trade union.
A number of multi-employer collective agreements (MECAs) are in place in New Zealand which have been negotiated by the New Zealand Nurses Organisation (NZNO), a union and professional organisation that represents both nurses and midwives. Membership details of NZNO can be viewed on its website. Other unions include the New Zealand Public Service Association (PSA) which covers healthcare practitioners working in the public sector. Nurses may also apply for membership of the College of Nurses Aotearoa (NZ) Inc., a professional organisation which provides indemnity insurance but is not a union. Nurses who are employed in mental health may belong to Te Ao Maramatanga (New Zealand College of Mental Health Nurses).
An employee who believes there is ‘serious wrongdoing’ in or by an organisation may disclose information to an appropriate person and be protected from prosecution, civil liability or professional disciplinary action for doing so. The Protected Disclosures Act 2000 applies to both public and private sector organisations.g The employee must take these concerns through an established internal procedure or may take their concerns directly to the head of the organisation. If the concerns of the employee are not resolved using these methods, the employee may disclose those concerns to others, including the Ombudsman or a Cabinet minister. The purpose of this whistle-blowing legislation is to facilitate disclosure and investigation of matters of serious wrongdoing in or by an organisation and to provide protection for employees who may—provided they make the disclosure in accordance with the Act—disclose such matters, including matters constituting a serious risk to public health or safety. The legislation resulted from a case where a nurse reported his concerns about the release of a dangerous psychiatric patient from hospital to the Opposition Spokesperson for Justice (Pugmire v Good Health Wanganui Ltd (No 2) [1994] 1 ERNZ 174). The nurse was suspended by his employer and then dismissed for his actions.
The Safety in Employment Act 1992 requires that employers ensure the safety of employees, but also places an obligation on employees. Section 19 of this Act notes that:
Further information about issues in employment law in New Zealand is discussed in Keenan (2010).
Legal issues in nursing specialties
In New Zealand, nurses working in community or specialty health settings must also be aware of the wide range of legislation affecting their practice, particularly public health laws, which place mandatory obligations on healthcare professionals in some circumstances.h
Nursing children
Several legal issues relate to the nursing care of children. Of particular note is that there is no age of consent under the Code of Rights. A child is presumed competent until otherwise assessed, and a competent child has the right to make an informed choice and give or refuse consent (Right 7(2)). The test is whether a child or young person is competent to make an informed choice and give informed consent. This provision is for the purpose of Code of Rights liability. The informed consent provisions of the Code of Rights have effect unless any other legislation or the common law provides otherwise; there are numerous statutes relating to the provision of services for children and young people that do provide otherwise.
At common law the capacity to consent to treatment is not dependent on someone being above a certain age. However, the younger the child and the more important the decision, the less likely that the child will be considered competent to give consent. Under section 36 of the Care of Children Act 2004, young people over 16 years of age can consent or refuse to consent to healthcare procedures. As with any adult, a healthcare practitioner can overturn this right if there are reasonable grounds for believing that a person is not competent. A young person who is married, living in a civil union or living with a de facto partner is also able to give or refuse consent to healthcare procedures. A female child of any age can give consent to the termination of her pregnancy or a refusal to a termination (Care of Children Act 2004, s.38).
Under section 37 of the Care of Children Act 2004, no civil, criminal or disciplinary proceedings may be brought against a person for the administration of a blood transfusion to a person under the age of 18 years by reason of the lack of consent of a person whose consent is required by law. No consent is required for the examination of children (on a court order) on suspicion of child abuse or neglect (Children, Young Persons and Their Families Act 1989, s.49); the child is entitled to have an adult present during the examination (s.54).
In the paragraph above, there is reference to consent in relation to the administration of a blood transfusion in relation to individuals under the age of 18 years. Discuss with a colleague about the reasons why this might be the case.
Reference is also made about consent not being required for the examination of children where abuse or neglect is suspected. What reasons behind the rationale for this are apparent to you?
Where the Chief Executive of Social Welfare has been appointed sole guardian of the child, consent can only be given by the Chief Executive (Children, Young Persons and Their Families Act 1989, s.110(2)(a)); a child aged 14 years or over can apply to the Court to overturn a refusal of consent by the Chief Executive in respect of any important matter which affects the child (s.116).
Under section 125 of the Health Act 1956, authorised persons, including some nurses, may examine children attending a school or early-childhood education centre, and may notify the child’s parent or guardian of any condition which is affecting the health or normal development of the child or of any disease or defect from which the child may be suffering.
Section 4 of the Contraception, Sterilisation and Abortion Act 1977 permits a parent or guardian, medical practitioner or carer of any mentally subnormal female to administer any contraceptive to that female if it is considered in the best interests of the female to do so. A female is mentally subnormal if she is suffering from subnormality of intelligence as a result of arrested or incomplete development of mind to the extent that she is incapable of living an independent life or of guarding herself against serious exploitation or common physical dangers, or to the extent that she is incapable of understanding the effective use of contraceptives or the desirability or need for their use.
It is not possible for any person to consent to the sterilisation of another person if that other person lacks the capacity to consent on their own behalf by reason only of their age (Contraception, Sterilisation and Abortion Act 1977, s.7). Where a patient lacks the capacity to consent to an abortion because of mental incapacity, the certifying consultants must consult with a medical practitioner or another qualified and experienced person in the field who is able to make an assessment of the patient’s condition and the likely effect on it of the continuance of the pregnancy or an abortion (Contraception, Sterilisation and Abortion Act 1977, s.34).
Useful information about consent issues in child and youth health is available on the Ministry of Health’s website and from the Office of the Children’s Commissioner (see Online resources).
Mental health nursing
In New Zealand, rights for the mentally ill are provided for in the Code of Rights in the same way as for any other consumer of healthcare services. Where a person has such a severe mental illness that it amounts to a mental disorder within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 to the extent that the person requires compulsory assessment or treatment, then that person has additional rights under that Act (Part VI, ss. 64–75).
Standards and guidelines are important documents for nurses and other healthcare practitioners working in the mental health area, and are available through simple web searches or via the Ministry of Health website (see Online resources). These standards and guidelines may be revised from time to time.
Professional responsibility of nurses
All nurses, irrespective of where they practise nursing, are professionally responsible and accountable to be acquainted with the law that relates to healthcare and nursing practice. While employers may provide education and training for nurses in this regard, it is important for nurses to be aware that it is their individual responsibility to maintain competence in and currency with legal and professional issues.
ACKNOWLEDGEMENTS
This chapter has been reviewed and revised using the material written by Clare Prendergast in Crisp J, Taylor T, editors 2009 Fundamentals of Nursing, ed 3. Sydney, Mosby.
DISCLAIMER
This chapter is intended to provide a first point of reference for matters in respect of legal implications in nursing practice. It should not be acted or relied upon as a substitute for professional legal advice. Specialist legal advice should always be sought in relation to any particular circumstances.
ONLINE RESOURCES
The websites provided here give links to documents related to issues discussed in this chapter.
Nursing Council of New Zealand (NCNZ)
Competence notifications, www.nursingcouncil.org.nz/index.cfm/1,90,0,0,html/Competence-Notifications
Competence review process of the NCNZ; includes a guide to what happens if a nurse does not meet competence requirements, www.nursingcouncil.org.nz/download/52/competence-review.pdf
Competencies for registered nurses, www.nursingcouncil.org.nz/download/73/rn-comp.pdf
Complaints about a nurse, www.nursingcouncil.org.nz/index.cfm/1,92,0,0,html/Complaints-about-a-nurse
Disciplinary action process, www.nursingcouncil.org.nz/download/51/complaints-and-discipline-process-sep-08.pdf
Health notification process, www.nursingcouncil.org.nz/index.cfm/1,91,0,0,html/Health-Notifications
The conviction process, www.nursingcouncil.org.nz/download/51/the-court-conviction-process-september-08.pdf
The health process, www.nursingcouncil.org.nz/download/175/health-process-april11.pdf
Other organisations
Health and Disability Commissioner; Code of Health and Disability Services Consumers’ Rights available as a leaflet, www.hdc.org.nz/media/24833/leaflet%20code%20of%20rights.pdf
Health Practitioners Disciplinary Tribunal; detailed information about the way in which the Tribunal has addressed various complaints and disciplinary actions for all healthcare practitioners, including nurses, www.hpdt.org.nz
Ministry of Health: Guidelines for clinical risk assessment and management in mental health services, www.moh.govt.nz/notebook/nbbooks.nsf/0/2FE380C25ED2F1B34C25668600741EBA/$file/mentalra.pdf Guidelines for discharge planning for people with mental illness, www.moh.govt.nz/notebook/nbbooks.nsf/0/D8A22D87506394174C2565D70018ACF9/$file/GuidelinesforDischargePlanningforPeoplewith.pdfGuidelines for medical practitioners using sections 110 and 110A of the Mental Health (Compulsory Assessment and Treatment) Act 1992—www.health.govt.nz and use the search boxGuidelines for the role and function of duly authorised officers under the Mental Health (Compulsory Assessment and Treatment) Act 1992—www.health.govt.nz and use the search boxInformation about consent in child and youth health, www.health.govt.nz/publication/consent-child-and-youth-health-information-practitionersInformation on standards, www.health.govt.nz/our-work/regulation-health-and-disability-system/certification-healthcare-services/health-and-disability-services-standardsInvolving families: guidance for involving families and Whaānau of mental health consumers/tangata whai ora in care, assessment and treatment processes—www.health.govt.nz and use the search boxMaking links: guidelines on service coordination for children and young people with severe mental health problems, www.moh.govt.nz/moh.nsf/Files/newftres/$file/newftres.pdf
National Mental Health Sector Standard: He Whariki Oranga Hinengaro, New Zealand Standard NZS 8141:2001, http://shop.standards.co.nz/scope/NZS8143-2001.scope.scope.pdf
New Zealand Nurses Organisation; information about the crucial nature of appropriate documentation by health professionals, www.nzno.org.nz/LinkClick.aspx?fileticket=8MknWhFVTnI%3D
Office of the Children’s Commissioner; a further useful resource in relation to consent in child and youth health, www.occ.org.nz/advice/health
Privacy Commissioner; including information on the Health Information Privacy Code, http://privacy.org.nz
NOTES
a. For examples of cases that have been found to amount to professional misconduct and upheld by the High Court on appeal, see Collie v Nursing Council of New Zealand [2001] NZAR 74 (registered nurse working as a practice nurse found guilty of professional misconduct for accepting gifts from an elderly couple totalling $25,000); Harangi Biddle v Nursing Council of New Zealand, HC Wellington, France J, 4 March 2003, AP 90/02 (registered midwife found guilty of professional misconduct for failing to assess and investigate a mother’s concerns about postpartum symptoms). Findings of professional misconduct are reported in the New Zealand Gazette and in Kai Tiaki: Nursing New Zealand, the journal of the New Zealand Nurses Organisation.
b. Staite v Psychologists Board, HC Christchurch, Young J, 18 December 1998, P 52/98, 22p.
c. Health Information Privacy Code 1994 issued by the Privacy Commissioner under the Privacy Act 1993 contains 12 rules that apply to health information about identifiable individuals.
d. Deciding what are reasonable steps will depend on the proposed use to be made of the information and its impact on the patient: for example, the case of P v J 27/10/98, High Court Auckland 117/98, where the High Court held that there was no interference with the privacy of the complainant who was concerned that her mental health background—and in particular a referral letter from a GP to a psychiatrist that the complainant said was not accurate—would affect her ability to get a job.
e. For example, s.22C of the Health Act 1956 provides that health information can be disclosed to specified persons including a medical officer of a penal institution, a probation officer, a social worker, the police, a Ministry of Health employee, the Ministry of Agriculture and Fisheries, the Land Transport Safety Authority; s.22D provides for disclosure to the Minister of Health by District Health Boards; s.22F provides for disclosure to other providers of health services on request for diagnostic and other treatment purposes.
f. Healthcare Otago Ltd v Williams-Holloway [1999] NZFLR 804, 812; and for other cases where the Court has ordered treatment against parents’ wishes, see, for example, Re J [1996] 2 NZLR 134(CA), 3-year-old had life-threatening nosebleed; Re P [1992] NZFLR 95, twins born at 26/40 gestation needed blood transfusions; Re CL [1992] NZFLR 352, 4-year-old needed blood during congenital heart defect correction; THJL v SL & LL 4/11/97 Salmon J, High Court Auckland, M708/97, testicular biopsy ordered on 2-year-old and orchidectomy if malignant; Re Norma [1992] NZFLR445, chemotherapy ordered for 19-month-old Samoan girl with likely Ewing’s sarcoma; Auckland Healthcare Services v Lui 11/7/96, High Court Auckland, M812/96, repair of partially detached retina ordered for 12-year-old boy. For full discussion of the New Zealand legal position when parents refuse treatment for their children, see Manning (2001); the issues are also discussed in Chapter 7 in Keenan (2010).
g. The Protected Disclosures Act 2000 applies to both public and private sector organisations and the term ‘serious wrongdoing’ encompasses the following:
h. Section 77 of the Health Act 1956 empowers a Medical Officer of Health to enter any premises and examine any person believed to be suffering from, or recently exposed to, an infectious disease. Section 79 empowers a Medical Officer of Health to isolate a person to a hospital or other suitable place to prevent the spread of an infectious disease. This was used in May 1999 in Christchurch to prevent two intellectually disabled men from spreading AIDS. See also s.59 of the Tuberculosis Act 1948, which permits detention of patients in hospital; s.125 of the Health Act 1956, which permits examinations of children in public or private schools; and the Mental Health (Compulsory Assessment and Treatment) Act 1992 and the Alcoholism and Drug Addiction Act 1996, which permit detention for treatment.
Burgess M. A guide to the law for nurses and midwives. Auckland: Pearson Education, 2008.
Keenan R, ed. Health care and the law, New Zealand, ed 4, Wellington: Brookers Ltd, 2010.
Manning J. Parental refusal of life-prolonging treatment for children: a report from New Zealand. J Law Med. 2001;8(3):263–285.
Ministry of Health (MOH). Reportable events guidelines. Wellington: MOH, 2001. Online Available at www.health.govt.nz/publication/reportable-events-guidelines 6 May 2012.
Nursing Council of New Zealand (NCNZ). Competencies for registered nurses. Wellington: NCNZ, 2007. Online Available at www.nursingcouncil.org.nz/download/73/rn-comp.pdf 24 Mar 2012.
Nursing Council of New Zealand (NCNZ). Competencies for the nurse practitioner scope of practice. Wellington: NCNZ, 2008. Online Available at www.nursingcouncil.org.nz/download/74/np-competencies-sept09.pdf 24 Mar 2012.
Nursing Council of New Zealand (NCNZ). Competencies for the enrolled nurse scope of practice. Wellington: NCNZ, 2010. Online Available at www.nursingcouncil.org.nz/download/76/en-competencies-april10.pdf 24 Mar 2012.
Nursing Council of New Zealand (NCNZ). Definition of practising. Wellington: NCNZ, 2010. Online Available at www.nursingcouncil.org.nz/index.cfm/1,32,html/Practising-certificates 28 Feb 2012.
Nursing Council of New Zealand (NCNZ). Guidelines for competence assessment. Wellington: NCNZ, 2011. Online Available at www.nursingcouncil.org.nz/download/220/comp-assess-feb11.pdf 29 Feb 2012.
Vernon R, et al. Confidence in competence: legislation and nursing in New Zealand. Int Nurs Rev. 2011;58(1):103–108.
Vernon R, et al. Continuing competence for practice. In: Chang E, Daly J, eds. Transitions in nursing. Sydney: Churchill Livingstone; 2012:341–356.
Auckland Healthcare Services v Lui 11/7/96, High Court Auckland, M 812/96
Collie v Nursing Council of New Zealand [2001] NZAR 74
Harangi Biddle v Nursing Council of New Zealand, High Court Wellington, France J, 4 March 2003, AP 90/02 (Midwife)
Healthcare Otago Ltd v Williams-Holloway [1999] NZFLR 804, 812
P v J 27/10/98, High Court Auckland, 117/98
Pugmire v Good Health Wanganui Ltd (No 2) [1994] 1 ERNZ 174
Staite v Psychologists Board, High Court Christchurch, Young J, 18 December 1998, P 52/98
THJL v SL & LL 4/11/97, Salmon J, High Court Auckland, M708/97
All of the following acts may be accessed through www.legislation.govt.nz/default.aspx
Alcoholism and Drug Addiction Act 1966
Children, Young Persons and Their Families Act 1989
Contraception, Sterilisation and Abortion Act 1977
Health (Retention of Health Information) Regulations 1996
Health and Disability Commissioner Act 1994
Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996
Health Information Privacy Code 1994 and commentary [2008 edition], 2008
Health Practitioners Competence Assurance Act 2003
Injury Prevention, Rehabilitation and Compensation Act 2001
Mental Health (Compulsory Assessment and Treatment) Act 1992
New Zealand Bill of Rights Act 1990
New Zealand Public Health and Disability Act 2000
Parental Leave and Employment Protection Act 1987
Protected Disclosures Act 2000
Protection of Personal and Property Rights Act 1988