Chapter 11 Medicolegal aspects of perioperative nursing practice
After reading this chapter, you should be able to:
This chapter focuses on medicolegal and ethical topics as they relate to care delivery in the perioperative setting. It addresses issues that are central to safe practice and patient care delivery in terms of their legal, ethical or moral underpinnings. Nursing practice is informed and guided by legislation and common law decisions, by various codes of professional conduct and practice standards, and by state and federal health department or national ministry policies. At a time of strong public and professional interest in safety and quality in health care, patient safety, risk management and quality improvement remain central to the delivery of surgical care in the operating suite.
Nursing practice, like the practice of other health professionals, is regulated to protect the public. In Australia and New Zealand this happens via the enactment of variously titled Nurses’ Acts, which enable the establishment of statutory bodies, such as nurse regulatory authorities (NRAs), to administer the Acts. In Australia, nurses are registered by individual state and territory NRAs; however, the Mutual Recognition Act 1993 eliminates unnecessary restrictions on worker mobility between states, including nurses. The Trans-Tasman Mutual Recognition Act 1996 and its New Zealand counterpart extend this privilege (Staunton & Chiarella, 2008). Notwithstanding the current arrangement, a national nurse registering authority in Australia is anticipated in 2009 (Council of Australian Governments, 2006; NSW Nurses and Midwives Board, 2007). In New Zealand, nurses, like all health practitioners, are registered in accordance with the requirements of the Health Practitioners Competence Assurance Act 2003, which also addresses scope of practice and fitness for practice, and provides mechanisms to ensure ongoing competency of nurses.
For nurses, the obvious advantage to a single, national NRA is the ability to practice across jurisdictions without any impediment. A national NRA will facilitate the work of the Australian Nursing and Midwifery Council (ANMC), the peak body in Australia established more than a decade ago to bring a national approach to the regulation of nursing (and midwifery). The ANMC works with state and territory NRAs to evolve national standards for practice and for the accreditation of courses, as well as codes of conduct, which are reviewed and updated regularly (ANMC, 2007). The Nursing Council of New Zealand serves the same purpose and function as an NRA; the Council also publishes a code of conduct for nurses.
Perioperative nursing practice in Australia is further informed by national codes of conduct, which are developed and revised by the ANMC (2008; Australian Nursing Council, 2004). In New Zealand, the code of conduct for nurses published by the Nursing Council of New Zealand (NCNZ) (2006) is the pertinent code (Table 11-1). These Australasian organisations also publish standards for registered and enrolled nurses, Nurse Practitioners, and other information that guides practice (ANMC, 2007; NCNZ, 2005, 2006, 2007).
Table 11-1 New Zealand code of conduct for nurses
| Four principles with criteria form the framework for the Code. The nurse: |
| 1. complies with legislated requirements |
| 2. acts ethically and maintains standards of practice |
| 3. respects the rights of patients/clients |
| 4. justifies public trust and confidence. |
Nursing Council of New Zealand (2006)
The Australian code of ethics and code of professional conduct is based on contemporary research evidence. It is designed to:
In all of their activities, individual perioperative nurses remain accountable for their practice and, as necessary, advocate on behalf of their patients; these are enshrined in the various codes of conduct. Box 11-1 provides the ANMC definition of accountability. Accountability and advocacy are further explored under scope of practice (p 265), as well as via an exploration of several legal cases involving perioperative nurses.
Box 11-1 ANMC definition of accountability/accountable
Accountability means that nurses and midwives must be prepared to answer to others, such as health care consumers, their nursing and midwifery regulatory authority, employers and the public for their decisions, actions, behaviours and the responsibilities that are inherent in their roles. Accountability cannot be delegated. The registered nurse or midwife who delegates an activity to another person is accountable, not only for their delegation decision, but also for monitoring the standard of performance of the activity by the other person, and for evaluating the outcomes of the delegation (ANMC, 2007, p 14).
Advocacy can be considered a process whereby nurses provide patients with information to help them make certain decisions, or it can be a nurse pleading for better care of a patient. Acting as the patient’s advocate has legal and ethical implications, which the perioperative nurse must consider. There are few better examples of acting on behalf of the patient than doing so in the perioperative environment where patients are either sedated or anaesthetised and unable to look after themselves. As patient advocate, the perioperative nurse works to ensure the patient’s physical, emotional and ethical needs are met, and must be ready to intervene to protect the patient’s safety. This may include speaking up if correct policies or procedures are not being adhered to or when potential exists for injury without intervention. Ensuring the patient’s safety while they are in the perioperative environment is a clear example of patient advocacy (Schroeter, 2002).
Acting as a patient advocate is not without its challenges, especially if acting on behalf of the patient brings the perioperative nurse into conflict with co-workers, some of whom may be close colleagues. It may be easier to turn a blind eye to incorrect or inappropriate behaviour than to speak up and risk the consequences that confronting the person concerned may bring. However, such inaction may result in harm to the patient and is in conflict with codes of ethics and conduct and the New Zealand Code of Rights. It may also place the perioperative nurse at risk of legal proceedings and professional scrutiny. If faced with this type of situation, the perioperative nurse must either confront the person concerned or seek advice from more senior colleagues who can advise on an appropriate course of action.
In 2007, the ANMC published a national framework for decision-making by nurses about their scope of practice with the purpose of fostering consistency across jurisdictions. It was developed in the context of national workforce strategies to promote diversity, flexibility and responsiveness in the workforce, and reflects a whole-of-health workforce perspective. The decision-making framework consists of a set of principles that form the foundations for the development and evaluation of decision-making tools (ANMC, 2007). This framework is significant because it will facilitate the development of advanced perioperative roles, as well as other health care provider roles that may be relevant to patient care in perioperative settings. The Nursing Council of New Zealand has similar mechanisms for the development of advanced nursing roles.
Influences for change in nursing practice arise for several reasons, which include:
Nurse Practitioners can now practice in Australia and New Zealand following the progressive introduction of the necessary legislation and processes of authorisation by the relevant NRAs. Even though there are over 100 Nurse Practitioners now authorised across Australia and 26 in New Zealand, very few are in perioperative settings (Michael & Williamson, 2006; NZ Ministry of Health, 2006). One example of Nurse Practitioners in the operating suite is shown in Box 11-2. Advanced roles are explored further in Chapter 12.
Box 11-2 Nurse Practitioners in the operating suite
A small number of perioperative registered nurses are practising at an advanced level and in advanced roles; for example, there are experienced instrument and circulating nurses in one NSW public hospital who are in transitional Nurse Practitioner positions. Part of their role involves seeing (potential) surgical patients in the emergency department and admitting them to expedite their care and management. They do this by assessing and preparing them for surgery, ordering necessary diagnostic tests and arranging their inpatient bed postoperatively.
These roles have the potential to improve patient care because perioperative Nurse Practitioners expedite care in the situation of limited availability of surgical registrars. They also provide continuity of care/assistance more effectively than that provided by rotating junior medical officers. Equally importantly, they have evolved because of an identified local need to improve the surgical patients’ experience and from a nursing perspective (Ward & Hamlin, 2006). However, much work remains to be done to establish perioperative Nurse Practitioner positions in Australasia.
Decision-making related to new, evolving or advanced roles in the perioperative environment should occur within a sound risk management, professional, regulatory and legislative framework, as is spelt out by the ANMC (2007). Such a thoughtful process enables nurses to work to their full and/or potential scope of practice. This also enables appropriate delegation. Perioperative nurses, like all others, must practice within the scope of practice of the nursing profession; that is:
‘… the full spectrum of roles, functions, responsibilities, activities and decision-making capacity that individuals within that profession are educated, competent and authorised to perform’ (ANMC, 2007, p 4).
This definition highlights that they must practice within their own scope of practice as an individual. Thus, as individuals, nurses necessarily have their scope of practice more specifically defined than that of the profession as a whole. The relevance of this notion becomes apparent when considering, for example, requests made to individual nurses to scrub for cases where they may have no prior experience, knowledge and/or support; the result may be that the individual is performing outside her or his scope of practice. The same must be borne in mind when consideration is given to the delegation of activities to other health care workers, such as those roles or activities traditionally completed by registered nurses. When delegation is being considered, the following must be taken into account:
Thus, any decision about care activities that a perioperative nurse might make must involve:
An example of the use of such a process, which was used to change enrolled nurses’ scope of practice, is highlighted in Box 11-3.
Box 11-3 Developing an educational pathway for the enrolled instrument nurse
In 2002 a meeting of perioperative nurse managers from one area health service in New South Wales was held to address the issue of inadequate numbers of registered nurses working in the operating suite, by proposing a new model of role allocation. This was prompted by the view that nurses urgently needed to be engaged in workforce design, rather than be sidelined by it, with subsequent limited influence on its outcomes.
The managers knew that enrolled nurses were being allocated successfully to the instrument nurse role in some private facilities in New South Wales and in other states and countries. The advantage of this allocation was that it had the potential to create a more flexible and self-reliant registered nurse/enrolled nurse workforce, whereby the circulating nurse alternates roles with the instrument nurse. When these roles are interchangeable, the nurses can share the workload more equitably, match skills and knowledge more effectively and relieve each other for meal breaks more efficiently.
The managers believed that the time had come to explore this enrolled nurse model in the operating suites and, from the beginning of the proposal, were encouraged and supported by the Area Director of Nursing and Midwifery (Sutherland-Fraser, 2006); they followed a process similar to that found in the ANMC guidelines. So began the journey from a pilot course in one area health service, which was successful, to the implementation of a perioperative education program for enrolled nurses state-wide, which is now a formally recognised certificate course for endorsed, enrolled nurses.
Perioperative practice is also informed directly by professional standards, including those that are developed and revised by professional associations, such as the Australian College of Operating Room Nurses (ACORN, 2006a) and the Perioperative Nurses College of the New Zealand Nurses Organisation (PNCNZNO, 2005). These standards provide guidance for care delivery and management within perioperative settings and are used by a number of national accreditation agencies (ACORN, 2006a). The evolution, development and ongoing revision of perioperative nursing standards are a key activity of professional perioperative nursing associations worldwide. Perioperative nurses have a role that many other nurses see as highly technical and task-focused (Kuiper, 2004; Riley & Peters, 2000), orientated towards the physical, rather than psychological, aspects of care (McGarvey et al., 2000), and not necessarily even a real nursing role (Fitzgerald & Bull, 2004). Yet perioperative nurses in Australia and New Zealand govern their own practice and, as a group of specialist nurses, act to construct knowledge that informs practice on a wider professional level (Gillespie et al., 2006; Riley & Manias, 2002), which they have done for a significant length of time. The disciplined practices and knowledge that guide perioperative nursing practice and which aid patient safety are underpinned by professional standards. These, among other things, help distinguish perioperative nurses from other categories of health care workers in the operating room, as well as demonstrate the commitment of perioperative nurses to direct patient care and safe patient outcomes (Hamlin, 2005). Much of this knowledge is constructed within the framework of professional standards of practice. One such standard, ACORN’s A3 Handling of accountable items (‘the count’, is now the legal benchmark for perioperative nursing practice in Australia (Hamlin, 2005; Staunton & Chiarella, 2008).
Perioperative nursing competency standards are aligned with standards for practice. The significance of competency for practice has already been highlighted on page 265. For nurses working in the perioperative environment, the relevant competency standards that guide individual nursing practice are those developed by the two perioperative nursing colleges. In Australia during the course of a 6-year research project, which commenced in 1993, the ACORN competency standards for perioperative nurses were identified and validated (Hilbig, 1999). They have since been reviewed and updated (Williamson & Hill, 2007). These are now used to underpin performance development activities in many perioperative workplaces, and form the framework of the clinical component of some postgraduate perioperative courses (University of Technology, Sydney & Sydney South West Area Health Service, 2007). ACORN does not offer an accreditation service, which is another potential use of competency standards; however, the Perioperative Nurses College (2003) does so on a voluntary, user-pays basis (PNCNZNO, 2003).
A number of statutes (Acts of Parliament) nationally in New Zealand, and in each state, territory and/or the Commonwealth (Cth) in Australia, directly concern perioperative nurses and nursing practice. They include those associated with privacy and confidentiality, such as national Privacy Acts: Australian Privacy Act 1988 (Cth) and NZ Privacy Act 1993. The states and territories of Australia also have variously titled legislation governing information privacy, such as the Health Records and Information Privacy Act 2002 (NSW), the Health Records Act 2001 (Vic.) and the Information Act 2002 (NT).
Another group of statutes include those that address poisons and drugs regulation, such as the Health (Drugs and Poisons) Regulation 1996 (Qld) and the Poisons and Drug Act 1978 (ACT). Other legislation to bear in mind includes the Therapeutic Goods Act 1989 (Cth) and various occupational health and safety statutes enacted in each state. In New Zealand, the Health and Disability Commissioner Act 1994 and Health and Disability Commissioner Amendment Act 2003 incorporate The Code of Health and Disability Services Consumers’ Rights (known as the ‘Code of Rights’, which is wide and extends to any person or organisation providing a health service to the public. The Code of Rights also covers all health professionals, and an obligation under the Code is to take reasonable actions in the circumstances to give effect to the rights, and comply with the duties. No such bill or code of rights exists in Australia, although a National Patient Charter of Rights is currently at the draft stage (Australian Commission for Safety and Quality in Health Care, 2008).
Common law decisions also have a direct bearing on practice, such as those related to negligence, which is a civil wrong (or tort), and to consent to treatment. Failure to gain consent from patients before treating them constitutes part of the civil wrong of trespass to the person, specifically assault and battery; it should not be confused with the civil wrong of negligence. The underpinning legal principles associated with all civil wrongs are well-established common law principles developed by the courts over several centuries (thereby establishing precedents) and sometimes referred to as case law. Some of the principles addressing the law of civil wrongs or torts have been extended by national, state or territory legislation, all of which vary somewhat (Forrester & Griffiths, 2005; Staunton & Chiarella, 2008). In each Australian state and New Zealand, legislation covers the adult who is incompetent to give consent (Forrester & Griffiths, 2005).
Additionally, state, territory or national health department/ministry policies have a direct bearing on perioperative practice; for example, the NSW Department of Health has a policy related to the conduct of the surgical count, which is mandatory in public hospitals (NSW Health, 2005). Another example is infection control policies, which all states, territories and the Commonwealth have (as well as enshrined in legislation), and which have great relevance to perioperative nursing practice.
Negligence is the most widely known civil wrong or tort. Although there is no one accepted definition of negligence, the cardinal principle is that the party complaining (the plaintiff) is owed a duty of care by the party complained of (the defendant), that this duty of care has been breached and, as a consequence of that breach, the party complaining suffered damage (Staunton & Chiarella, 2008).
The roles that perioperative nurses undertake while caring for surgical patients requires diligence and discipline, as there are numerous areas where the potential for injury to the patient can occur within the perioperative environment. This is because of the vulnerability of individuals undergoing surgical intervention and the nature of the surgical environment itself. Some examples of the mishaps that surgical patients may experience, although this list is by no means complete, include:
When entering the operating suite, patients are at one of the most vulnerable periods of their hospitalisation. They place their trust in the surgical team to ensure that no harm will be done. Unfortunately, sometimes events occur that result in patients being harmed. Patients who experience injury or harm may decide to bring an action against those whom they believe are responsible for that harm. A civil case for negligence can be brought by patients who believe that they have been injured as a result of health professionals’ care falling below the required or accepted standard of care; that is, the acts (or omissions) were not those expected of the ordinary, reasonable health professional. Nurses can and do become involved in legal proceedings, resulting in their practices being examined; however, it should be noted that it is rare for nurses to have an action brought against them directly (i.e. be sued individually).
In an action of negligence, a patient, or plaintiff, has to prove a number of elements to establish that, on the balance of probabilities, negligence has occurred. These elements include establishing that:
All these elements are exemplified in the Australian negligence case, Langley & Another v Glandore Pty Ltd (in Liq) & Another (1997), which is outlined in Box 11-4.
Box 11-4 Langley & Another v Glandore Pty Ltd (in Liq) & Another (1997)
A patient underwent a hysterectomy in a Queensland hospital. After suffering symptoms over a period of months, investigations revealed that a surgical sponge had been inadvertently left in her abdomen. This was removed in a second operation 10 months after the first procedure. She sued the surgeons and hospital, as the latter was vicariously responsible for the perioperative nurses. The judge at the first hearing found the surgeons negligent for leaving the sponge inside the patient, but the nurses were found not to be negligent. The surgeons appealed the judgement on the basis that the circulating and instrument nurses played a crucial role in accounting for the sponges used in the procedure. At the appeal hearing. the judge agreed with the surgeons and, in a significant judgement for perioperative nurses, made it clear that both of the nurses were ‘primarily responsible’ for the count. Neither nurse could provide an explanation as to how a counting error occurred or why the count sheet from the original operation was shown to be complete (Staunton & Chiarella, 2008).
The elements of negligence from this case were as follows:
Significant points highlighted by this case were the use of the ACORN Standards in court in order to establish the standard of care expected when handling accountable items (ACORN Standard A3 Handling of accountable items). Another significant point made by the judge in the appeal hearing was to place ‘primary responsibility’ for the count in the hands of the circulating and instrument nurses. It should be noted that the count sheet produced in evidence in this case was complete, with no indication of a counting error evident. This Queensland case, and others that have since arisen (e.g. Elliot v Bickerstaff [1999]), highlight the need for vigilance when conducting and recording counts, and handling accountable items intraoperatively.
All patients undergoing surgery must understand and give informed consent to the procedure. This is the same for any health care treatment, which patients may accept or decline (Staunton & Chiarella, 2008). Health department and local policies set out the requirements for consent that are considered to be valid based on common law decisions, which vary from state to state (see Box 11-5 on Rogers v Whitaker). In New Zealand, the Code of Rights enshrines patients’ rights related to consent, which must be fully informed and given freely. Although it is not the role of perioperative nurses to obtain the patient’s consent for a surgical intervention, they do have a responsibility to check that patients have given consent to treatment, and that the consent is informed. This is usually evidenced by the presence of a signed consent form.
Box 11-5 The case of Rogers v Whitaker (1992) 175 CLR 479
Mrs Whitaker, a lady in her 60s, was blind in her right eye following a penetrating eye injury when she was 9 years old. Despite this, she had led a normal life, was married and had raised four children. In 1983 she decided to rejoin the workforce and went for a pre-employment health check. Her general practitioner suggested that she might investigate the possibility of a corneal graft to her damaged right eye and referred her to Dr Rogers, an expert in this area. Over the next few months, Mrs Whitaker and Dr Rogers had several consultations and treatment options were discussed. Dr Rogers felt that surgery could significantly improve her sight and Mrs Whitaker agreed to undergo surgery.
Surgery proceeded uneventfully, but complications developed in the postoperative period. Significantly, the left eye (the eye that had vision) developed ‘sympathetic ophthalmia’, a serious, although rare, inflammatory condition. Despite intensive treatment, Mrs Whitaker lost the sight in her left eye and, unfortunately, had little improvement in the right eye. She was, effectively, left blind. Mrs Whittaker sued Dr Rogers for negligence on the grounds that he had failed in his duty of care by not warning her of the possibility of sympathetic ophthalmia. She won her case and was awarded compensation. Dr Rogers appealed the decision against him in a case that went all the way to the High Court of Australia. In a majority judgement, the High Court upheld the decision of the lower court and, in doing so, made several significant statements, which have influenced policy development in the area of informed consent (Staunton & Chiarella, 2008).
For patient consent to be valid:
The final point was significant in the case of Rogers v Whitaker (1992) 175 CLR 479, which is outlined in Box 11-5.
It must be understood that the responsibility for providing information about proposed surgery and for obtaining the patient’s consent remains with the surgeon performing the procedure or a delegated deputy. However, the perioperative nurse, as part of the checking procedure that the patient undergoes during their perioperative experience, will sight the consent form and ask the patient to verify the surgery they are about to undergo. The perioperative nurse should be alert to any signs of the patient lacking understanding of the procedure. In such a situation, the perioperative nurse should discuss this with the surgeon in charge of the patient’s care to follow up with the patient prior to surgery commencing. Taking this action is an example of the perioperative nurse acting as an advocate for the patient.
Even though the outcome of the vast majority of surgical cases is positive for the patient, occasionally patients die on the operating table, or within 24 hours of surgery. This is naturally a devastating event for all concerned, and, as well as the emotional aftermath, legal requirements must be adhered to which fall within the jurisdiction of the coroner. The role of the coroner and coroners’ courts in Australia has been inherited from English common law, where it has existed for hundreds of years. The main role of the coroner is to ‘detect unlawful homicides’ and investigate deaths that have occurred in unusual, unexpected, violent or unnatural circumstances to ensure that no foul play was involved (Staunton & Chiarella, 2008). Each Australian state/territory has it own Coroners’ Act and in New Zealand there is the Coroners Act 2006. Under these Acts, the coroner must hold inquests into deaths that occur under certain circumstances. It is beyond the scope of this text to discuss these in detail; however, the circumstance that has direct implication for perioperative nurses is the death of a patient who has (for example):
‘… died while under, or as a result of, or within 24 hours after the administration of, an anaesthetic administered in the course of a medical, surgical or dental operation or procedure or an operation or procedure of a like nature, other than a local anaesthetic administered solely for the purpose of facilitating a procedure for resuscitation from apparent or impending death’ (Coroners’ Act 1980 [NSW]).
Even though responsibility for the actual documentation related to the death of a patient on the operating table rests with the surgeon, perioperative nurses must be aware of certain requirements related to the care of the patient after death. These policies are well documented within individual units, but are essentially concerned with leaving the body undisturbed; this means leaving in place drains, cannulae and other such items until a post-mortem examination is completed. Items such as a patient’s clothing or belongings may also be required for forensic examination, and local policies will provide guidance on the correct handling of these items (NSW Health, 2005).
The coroner is also involved in cases where the patient has consented to donating their organs for transplantation. In Australia, legislation governing organ and tissue donation is state- or territory-based, although all have followed the Commonwealth’s proposed legislation (developed by the Australian Law Reform Commission), adopting parts or sections of it as they considered relevant or necessary. However, the result is a piecemeal body of case law and legislation (Staunton & Chiarella, 2008). Solid organ (e.g. liver, kidneys) donation agencies based in each state coordinate the retrieval of organs, and separate tissue banks facilitate the retrieval of other tissue (e.g. eyes, skin) from around Australia. In New Zealand, legislation is national and the donor agency, Organ Donation New Zealand, coordinates all organ and tissue retrieval from deceased donors (Currey et al., 2007).
Legislation in both countries takes the form of Acts addressing the retrieval and use of human tissue before and after death. The legislation gives individuals or their next of kin the choice to ‘opt in’ and give specific consent to be a donor (Staunton & Chiarella, 2008). Organ donation can subsequently proceed unless that consent is revoked by the donor or the next of kin. If the deceased’s wishes are not apparent, consent for organ donation rests with the next of kin. Most (but not all) Australian state and territory Human Tissue Acts (howsoever named) define death (e.g. as in the Tasmanian Human Tissue Act 1985, s 27A) as:
Note: South Australia and Western Australia have not adopted the proposed definition of death (Staunton & Chiarella, 2008).
Likewise, in New Zealand the National Human Tissue Act 1964 does not provide a definition of death, but it is defined in the NZ Ministry of Health’s (1987) code of practice for the transplantation of cadaveric organs. Both countries have processes for organ and tissue retrieval and transplantation governed by the Joint Agency for the Regulation of Therapeutic Products. This agency, together with numerous professional bodies in both countries, is responsible for the education of health professionals, the process of potential donor identification, the regulation of donor criteria and organ allocation (Currey et al., 2007).
Although the diagnosis of brain death is now widely accepted in Australia and New Zealand, it remains controversial (Staunton & Chiarella, 2008). The most common cause of brain death has changed from traumatic head injury to spontaneous intracranial haemorrhage, which has implications for the organs and tissues retrieved as the donors are older and often have cardiovascular and other comorbidities (Australian and New Zealand Organ Donation Registry, 2005; Streat & Silvester, 2001). Clear, specific and incontrovertible policies and protocols regarding the confirmation of brain death are necessary; however, it is beyond the scope of this text to explore this in detail. Information on this subject can be obtained from the references listed on page 282.
Prior to brain death legislation, donation after cardiac death (DCD) was the only source of cadaveric kidneys for transplantation. However, DCD programs are being re-established globally (Staunton & Chiarella, 2008) and successfully, and these increase the availability of transplant material. DCD, also referred to as non-beating heart donor, provides a solid organ and tissue donation option for the person who has not and is not likely to proceed to brain death (Currey et al., 2007). For further information, particularly related to ethical issues associated with transplantation, the National Health and Medical Research Council has draft guidelines available on its website (see Resources, p 281).
All potential donor families will be informed that retrieval may not take place because of a number of variables, including the length of time from treatment withdrawal to cardiac standstill (American College of Critical Care Medicine Ethics Committee, 2001). Should the time frames be exceeded, the potential retrieval process is aborted and end of life care continues. Otherwise, withdrawal of treatment and confirmation of death occurs within the intensive care unit (Currey et al., 2007).
Throughout the processes regarding confirmation of death and pre-transplantation requirements, the operating suite is kept fully informed as it will be necessary to have a fully equipped operating room and experienced staff on standby for the procurement process. The donor is transferred to the operating suite and the routine preoperative checks are carried out and documentation completed, including death confirmation and consent for the removal of organs and tissue. Thereafter, the donor is treated intraoperatively in the same manner as any other surgical patient (i.e. counting, intraoperative care plans and other documentation are completed). Following surgery, the patient may remain in the operating room or be returned to the intensive care unit for post-mortem preparation prior to transfer to the mortuary, depending on local policy.
The transplant coordinator plays a vital role in providing support for both the families of the donor and the staff who have been involved in the organ retrieval. Bereavement counselling and information on recipient outcomes are proven aspects of successful transplant programs (Beard et al., 2002; Rodrigue et al., 2003).
Documentation is an integral part of the work of the perioperative nurse, providing a record of continuity of patient care for use by colleagues when the patient returns to the ward postoperatively. The patient notes can also form important evidence for use in lawsuits or disciplinary proceedings (Staunton & Chiarella, 2008). Much of the documentation used in the perioperative environment involves charting aspects of the patient’s care, namely patient assessment, nursing and other interventions, and the evaluation of the care delivered. This information is recorded on documents such as anaesthetic records, fluid balance charts, the ‘count’ sheet, intraoperative care plans and patient observation/assessment charts used in the postanaesthesia recovery unit. The potential for documentation errors in the perioperative environment is highlighted in research conducted by Butler et al. (2003), which is presented in Box 11-6. The circulating nurse, in particular, is involved in a large amount of documentation, which may be paper-based, although increasingly this information is being captured electronically.
Box 11-6 Documentation errors in counting
A pilot study conducted in 2003 (Butler et al., 2003) sought to determine the influences on count errors and documentation errors. The study revealed that:
Lengthy cases, inexperienced staff, more than one instrument nurse and two procedures conducted at the same time were also believed to be influential. Further research, building upon these preliminary findings, continues.
Many operating suites now enter data related to the patient’s care directly onto an electronic record via computer terminals and this method of ‘documentation’ will increase in the future (Cubitt, 2007; Weaver, 2006). The advent of the electronic health record (EHR) has the potential to provide all nurses, including the perioperative nurse, with an even better medium to outline the care they deliver and its effectiveness in a transparent format that can be understood by those outside nursing (Kerr, 2006; Saba & Taylor, 2007). Many countries, including New Zealand, have adopted the EHR as a means of facilitating an efficient flow of information related to the patient’s care across hospital departments at a local level to state and national boundaries (Westbrooke & Fogarty, 2006). This has the potential to benefit the continuity of patient care, particularly in populations that travel or move around for work or family reasons.
An electronic record does not require the reader to decipher handwriting and possibly misunderstand, providing a safer method of communication, although it does require a level of computer literacy to enter the data. A number of hospitals have introduced customised software that allows the capture of specific patient information by those involved in the patient’s care. Electronic record keeping can be a fast and efficient method of documenting care, as well as allowing hospitals to generate data that can assist with allocating resources, monitoring patient care and demonstrating the attainment of key performance indicators. However, issues related to privacy and patient confidentiality, as well as the secure transmission of data, remain. Some of these can be addressed by the introduction and use of a ‘unique’ or individual, password-protected sign-on process (Cook & Conrick, 2006). Even though most perioperative records may become electronic in the future, the ‘count sheet’ is likely to remain paper-based for practical reasons. Regardless of whether documentation is electronic or on paper, the principles of accuracy and completeness remain foremost (Weaver, 2006).
An example of nursing information currently entered electronically in the operating suite is the intraoperative nursing care plan. The nursing care plan captures information about the nursing care carried out on the patient and includes information on patient positioning, placement of electrosurgery equipment, skin preparation solutions used, specimens taken, the placement of drains and/or catheters, the patient’s skin condition (before and after surgery) and pressure care measures utilised. All this information (often more, depending on local policy) provides a clear picture of the intraoperative nursing care provided to the patient, helping dispel the notion held by some that very little nursing care takes place during the perioperative period.
During the course of a surgical procedure the surgeon may remove tissue from the patient, which will be forwarded to pathology for examination. The handling of specimens is an important part of the instrument and circulating nurses’ role and must be carried out with diligence and accuracy. To ensure patient safety, correct handling and labelling is vital and the surgeon, instrument and circulating nurses must work together to ensure this occurs. The perioperative nurse must recognise that the patient’s diagnosis and future treatment is dependent on the correct handling of specimens.
The methods for handling and labelling specimens have been discussed in Chapter 4. Placing a specimen in an unlabelled container can be a dangerous practice as it can result in unlabelled or incorrectly labelled specimens being sent to the pathology department, which in turn could lead to a significant adverse event, such as patients undergoing unnecessary surgery, or other inappropriate interventions. A case for negligence could be made if a patient were to undergo an unnecessary procedure as a result of an incorrectly labelled specimen. All operating suites require policies and procedures to ensure safe handling of specimens, which are important patient safety and risk management strategies.
Occasionally, patients seek to have certain surgical tissue, such as gallstones, or explanted items, such as orthopaedic plates and screws, returned to them. In Australia, these requests are generally denied based on the infection risk that such items pose; each hospital should have a policy related to the disposal of explanted tissue. When such requests are made of perioperative nurses, they must respond according to this policy, which may include the requirement that patients sign a disclaimer form accepting responsibility for the items (ACORN, 2006b). However, the situation in New Zealand regarding the return of patient tissue is different, with such requests for the return of body parts/tissue addressed within a cultural context. This was discussed in Chapter 1.
Health care workers, including perioperative nurses, strive to ensure patient safety and provide quality care. Notwithstanding this, mishaps occur, and the incidence of errors and adverse events documented over the last decade or so is significant. Worldwide, there is much activity at regulatory, governmental and local levels to address increasingly complex and diverse systems, as well as cultural issues that affect patient outcomes negatively (Aspden, 2004; Barraclough, 2001; Degeling et al., 2004; Institute of Medicine, 1999). Further, there is increasing public interest in, and knowledge of, health care and its standards, and an expectation that the health care system will achieve better standards of safety and quality (Australian Council for Safety and Quality in Health Care (ACSQHC, 2004; NZ Ministry of Health, 2003). Aligned with this is the need to foster a transparent and just culture, one that acknowledges that health care workers can and do make errors, and that, on occasions, patients suffer unanticipated and unintentional harm (ACSQHC, 2003, 2004).
Both Australia and New Zealand have mechanisms to address quality and safety in health care. In Australia, the Australian Commission (formerly Council) for Safety and Quality in Health Care (ACSQHC) has responsibility for these issues. Within New Zealand, this is embedded within the New Zealand health strategy that:
’… embraces a culture of continuous quality improvement … which:
Quality is a multifaceted concept that is difficult to define (ACSQHC, 2003). One way to conceive it is ‘doing the right thing the first time, in the right way and at the right time’ (NSW Health, 2002). However, before a high-quality, safer health care system can be designed, the magnitude of the problem must first be determined. This is an extraordinary challenge, particularly across multiple jurisdictions, because it requires multiple but consistent data collections and methodologies (ACSQHC, 2003, 2004), and these are still being developed. By using techniques from other high-risk industries where safety is paramount, such as the aviation industry, the health sector is developing techniques to identify risks, and investigate and analyse incidents, and to use the knowledge gained to improve practice.
Australia was the first country to undertake a nationally representative study of adverse events in hospital patients (Wilson et al., 1995; Wilson et al., 1999), which revealed a 16.6% incidence of adverse events, half of which were associated with a surgical procedure. Of these adverse events, 51% were considered preventable. Even higher levels of adverse events (21.9%) have been reported among one cohort of surgical patients, of which 48% were preventable; of these patients, 13% suffered a permanent disability and 4% died (Kable et al., 2002). In New Zealand, the first national report on adverse events was published in 2001. The New Zealand results identified a rate of incidence of adverse events comparable with other studies, and noted that systems errors featured prominently in the analysis of areas for prevention of recurrence (NZ Ministry of Health, 2001).
Several states, including Victoria, Queensland and New South Wales, have published data about adverse and/or sentinel events for several years, with the Victorian Department of Human Services (DHS) being the first to do so (Victorian DHS, 2004). The first national report of sentinel events in Australian public hospitals was published in 2007 (Australian Institute of Health and Welfare [AIHW], 2007). To date, there is no equivalent (published) New Zealand data. Of the 130 events identified by the AIHW, and of particular concern for perioperative nurses, the single type of sentinel event that accounted for the greatest number (53 cases) was ‘procedures involving the wrong patient or body part’. The second most commonly occurring event (27 cases) was ‘retained instruments or other material after surgery requiring reoperation or further surgical procedure’. Although this is not the sum total of sentinel events, these two types of sentinel events are focused on because they concern perioperative nurses directly. Of the 53 cases involving the wrong patient or body part, 10 cases involved the wrong patient undergoing an invasive procedure, a further 10 cases were an invasive procedure on the wrong body part and five cases were patients given anaesthetics/blocks to the wrong area of the body (AIHW, 2007). Following analysis, the contributing factors associated with these sentinel events mainly related to ‘rules, policies and procedures’, ‘documentation’ and ‘communication’. Table 11-2 lists all of the contributing factors, which are further explored in the case study presented in Box 11-7.
Table 11-2 Contributing factors reported for procedures involving the wrong patient or body part, 2004–05
| Contributing factors | Number of cases |
|---|---|
| Lack of, problems with or breakdown in: | |
| Rules/policies/procedures | 36 |
| Information/documentation | 17 |
| Communication | 18 |
| Patient factors | 1 |
| Staff factors | 0 |
| Equipment | 2 |
| Work environment | 6 |
| Patient assessment | 1 |
| Coordination | 3 |
Box 11-7 Case study of a procedure involving the wrong patient or body part
Two non-English-speaking patients, with a common surname, each presented themselves for a colonoscopy. Each was accompanied by an interpreter. A doctor called the full name of patient 1 but was answered by patient 2 and went ahead with the procedure. The identification error was discovered when patient 1 approached clinic staff after waiting 3 hours to be called. Patient 2 was then correctly identified. Both patients had been awaiting the same procedure.
After the analysis of contributing causes, action was taken by the hospital to assess all of its ambulatory clinics for the adequacy of signage, in English and relevant community languages, clearly instructing patients to register at the clinic’s reception. Management also actively implemented the ‘correct patient, correct site, correct procedure’ policy and reinforced to all staff the need to use available resources, including interpreters, to ensure correct patient identification.
It can be seen from the case study in Box 11-7 that communication between patients and staff, and the organisation (notwithstanding the presence of an interpreter) was unsatisfactory or absent. Additionally, it appears that there was inadequate (or non-existent) implementation of a policy designed specifically to manage this risk. Both of these contributing factors are examples of system factors, and are those factors most commonly identified in all sentinel events, along with inadequate or absent ‘information/documentation’ (AIHW, 2007; Victorian DHS, 2004). A more detailed understanding of these issues is beyond this text and readers are directed to the Resources on page 281.
The second most frequently reported sentinel event was ‘retained instruments or other material after surgery requiring reoperation or further surgical procedure’, of which there were 27 cases. Again, this is significant because of the important role perioperative nurses play in preventing such events. The contributory causes of retained items are presented in Table 11-3. The contributing factors of note are ‘rules/policies/procedures’, ‘staff’, ‘equipment’ and ‘information/documentation’. These are further explored in the case study presented in Box 11-8, which emphasises the interplay of contributing causes, and includes the solutions offered following root cause analysis. Nursing research into the role and effectiveness of perioperative nursing standards aimed at preventing the inadvertent retention of surgical items identified similar issues (Hamlin, 2005). This research also noted the need to take a systems approach to managing the risk.
Table 11-3 Contributing factors reported for retained instruments or other material after surgery requiring reoperation or further surgical procedure, 2004–05
| Contributing factors | Number of cases |
|---|---|
| Lack of, problems with or breakdown in: | |
| Rules/policies/procedures | 7 |
| Information/documentation | 4 |
| Communication | 2 |
| Patient factors | 0 |
| Staff factors | 6 |
| Equipment | 6 |
| Work environment | 0 |
| Patient assessment | 1 |
| Coordination | 0 |
Note: Events for which no information on contributory factors could be extracted (1) are not included. AIHW (2007)
Box 11-8 Case study of a retained instrument or other material after surgery requiring reoperation or further surgical procedure
A surgical sponge was reported missing after peritoneal suturing was complete and wound closure was underway. The patient had undergone a lumbar spinal fusion procedure. Sponges were inserted into the wound during a nursing shift changeover that occurred during the operation. The patient had begun to awaken from the anaesthetic when a postoperative X-ray confirmed retention of the sponge in the patient’s abdomen. Immediate retrieval of the sponge was not feasible. It was removed during an uneventful return to theatre on the following day.
A general review of the operating room set-up process was recommended. Specific matters for attention included the scheduling of potentially long cases and scheduled list times, the method of allocating cases and changeover strategies. A review of appropriate policy/procedures was performed to ensure that:
The appropriateness of viewing X-ray material for other than its primary purpose was also recommended for review. The hospital is to develop strategies to ensure policy procedure compliance for all disciplines.
Commonly, sentinel events have their genesis in systems factors, which Reason (1990, 2001) has described as recurrent error traps in the workplace and the organisational processes that give rise to them. This has been clearly demonstrated in the data and case studies presented here. By acknowledging, analysing and reporting these incidents in this transparent fashion, the opportunity is created to change systems (and cultures) and subsequently to develop and implement policies to reduce or prevent them. This approach is also an example of a move away from a blame culture, which focuses on punishing individual health professionals for their mistakes and errors, to a systems-based approach to manage and prevent adverse events (ACSQHC, 2003).
In relation to the sentinel event of ‘procedures involving the wrong patient or body part’, the Australian Commission for Safety and Quality in Healthcare recommended that all public hospitals adopt the ‘correct patient, correct site, correct procedure’ protocol to reduce the possibility of patients undergoing the wrong procedures (ACSQHC, 2003). Senior perioperative nurses and surgeons were (and remain) involved in its evolution, implementation and evaluation (Davies, 2004). As far as sentinel events in the category of ‘retained instruments or other material after surgery requiring reoperation or further surgical procedure’, the development of a standardised method to account for all surgical instruments, enshrined in professional standards, has a much longer history, and has always been led by perioperative nurses (Richardson, 2003). Thus, it is clear that perioperative nurses have a significant role, at all levels of the health system, to ensure that surgical care of the patient is safe and of a high quality.
This chapter examined a range of medicolegal and ethical topics as they relate to care delivery in the perioperative setting. As well as exploring the regulatory framework that governs nurses’ practice, the evolving nature of that practice is also acknowledged, as are the mechanisms that have developed to accommodate the shifts. Additionally, codes of professional conduct and practice standards, and state/federal or national health ministry policies have been overviewed, with emphasis on those pertinent to perioperative settings.
At a time of intense public scrutiny and professional interest in safety and quality in health care, ways to ensure patient safety in the high-risk setting of the operating suite remain paramount. The nature of some surgical adverse events and risk management strategies to prevent them has consequently been addressed.
You are allocated to an operating room caring for patients undergoing procedures with which you are unfamiliar. You are working with a new graduate registered nurse, who is the anaesthetic nurse, and an endorsed, enrolled nurse, who has some experience caring for the patients in this operating room.
You are checking a patient, Mr Papadopoulos, into the operating suite. Mr Papadopoulos is scheduled to have a transurethral resection of prostate gland and this is stated on his consent form, which he has signed and the signature witnessed. However, when you ask Mr Papadopoulos to verify the nature of the operation, his response indicates that he is unsure of the operation he is about to undergo.
You are the circulating nurse for a procedure and are working with an experienced registered nurse, who is the instrument nurse. During the course of the initial count you note that the instrument nurse is not counting items according to practices set out in your operating suite’s policy manual, which is based on professional standards.
You are working in the postanaesthesia recovery unit. It is a very busy day with several patients already in the unit, stretching your resources to the limit. Another patient arrives accompanied by the anaesthetist and the anaesthetic nurse. However, neither you nor your colleagues are able to attend to the new arrival as you cannot leave your current patients without compromising their care.
Australian Bureau of Statistics www.abs.gov.au
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Australian College of Operating Room Nurses (ACORN) www.acorn.org.au
Australian Commission for Safety and Quality in Health Care www.safetyandquality.org
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Australian Institute of Health and Welfare (AIHW) www.aihw.gov.au
Australian Nurse Practitioner Association www.nursepractitioners.org.au
Australian Nursing and Midwifery Council www.anmc.org.au
College of Nurses Aotearoa (NZ) Inc. www.nurse.org.nz
College of Nursing (NSW) www.nursing.aust.edu.au
Council of Australian Governments (COAG) www.coag.gov.au
Department of Health, Western Australia http://www.health.wa.gov.au/home
Department of Human Services, Victoria www.health.vic.gov.au
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NSW Health www.health.nsw.gov.au
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Nurses and Midwives Board, NSW www.nmb.nsw.gov.au
Nurses and Midwives Board of Western Australia www.nmbwa.org.au
Nurses Board of South Australia www.nursesboard.sa.gov.au
Nurses Board of Victoria www.nbv.org.au
Nursing Council of New Zealand www.nursingcouncil.org.nz
Nursing and Midwifery Board of the Northern Territory www.nt.gov.au/health/org_supp/prof_boards/nurse_midwifery/board.shtml
Nursing Board of Tasmania www.nursingboardtas.org.au
Northern Territory Health Services http://www.nt.gov.au/health
Perioperative Nurses College of New Zealand Nurses Organisation http://www.nzno.org.nz/Site/Sections/Colleges/Perioperative/default.aspx
Queensland Health www.health.qld.gov.au
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