Legal System: Types of Law, Tort Law and Liabilities

Ms. Tessy Charlie (M.Sc Nursing)

Introduction

Law is a dynamic system of rules and guidelines, usually enforced through a set of

institutions. It shapes politics, economics and society in numerous ways and serves as a social

mediator of relations between people. It is a system for interpreting and enforcing the laws.

The principle of civil law is to provide all citizens with an accessible and written collection of

the laws which apply to them and which judges must follow. It is the most widespread type of

legal system in the world, applied in various forms in approximately 150 countries and oldest

surviving legal system in the world.

A Knowledge of legal system in nursing is absolutely essential for all nurse to safe

guard self and clients from legal complications. Consumers are becoming in caressingly aware

of their legal rights in the health care. It is essential there for a nurse should know her legal and

professional boundaries and their consequences. Legislation can be primary or secondary.

Primary legislation consist of Acts of parliament, known as statutes, which come into force at

a date set in the initial Act of parliament or subsequently fixed by order of a minister. The date

of enforcement is often later than the date the Act is passed by the two houses of parliament

and signed by the Crown. As conflicts and disputes arise and are brought before the courts, the

judges have to decide in the light of existing statutes and decided cases which are binding

upon them, the principles which apply.

Terminologies

♦ Accountability: Being responsible for one’s actions: a sense of duty in performing

nursing tasks and activities.

♦ Advance directives: Written or verbal instructions created by the patient describing

specific wished about medical care in the event he or she becomes incapacitated to

incompetent. Examples include living wills and durable powers of attorney.

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♦ Adverse event: An injury caused by medical management rather than the patient’s

underlying condition. An adverse event attribute to error is a preventable adverse

event.

♦ Case law: Body of written opinions created by judges in federal and state appellate

cases: also known as judge- made law and common law.

♦ Civil law: A category of law (tort law) that deals with conduct considered

unacceptable. It is based on societal expectations regarding interpersonal conduct.

Common causes of civil litigation include professional malpractice, negligence, and

assault and battery.

♦ Common law: Law that is created through the decision of judges as opposed to laws

enacted by legislative bodies (i.e., Congress)

♦ Criminal Negligence: Negligence that indicates “reckless and wanton” disregard for

the safety, well being, or life of an individual; behavior that demonstrates a complete

disregard for another, such that death is likely.

♦ Defendant: The individual who is named in a person’s (Plaintiff’s complaint as

responsible for an injury; the person who the plaintiff claims committed a negligent

act or malpractice.

♦ Liability: Being legally responsible for harm caused to another person or property as

a result of one’s action; compensation for harm normally is paid in monetary

damages.

♦ Licensing laws: Laws that establish the qualifications for obtaining and maintaining a

license to perform particular services.

♦ Plaintiff: The complaining person in a lawsuit; the person who claims he or she was

injured by the acts of another.

♦ Tort: Civil Wrong or injury committed by one person against another person or a

property.

Definition

1. Law is a ‘system of rules that enables society to function efficiently and harmoniously’

(Latimer)

2. It is a set of rules established by a governing power to guide actions, regulate conduct of

people and impose sanctions

3. A legal system is made up of a set of legal institutions, procedures and rules aimed at

ordering the behaviour or relations of people in society.

4. A `law` includes any Ordinance, order, bye-law, rule, regulation, notification, custom or

usage having the force of law.

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- Article 13 (3) Of Constitution Of India

5. Law: Law is the sum total of rules and regulations by which a society is governed.

6. Legal system: Legal system is Judges Action rather than intention.

7. “It is an Act passed by the legislature and assented to by the President of India or

Governor of a State.”

- Arts 111 and 200 of the Constitution of India

Philosophy of law

Philosophy of law (or legal philosophy) is concerned with providing a general

philosophical analysis of law and legal institutions. Issues in the field range from abstract

conceptual questions about the nature of law and legal systems to normative questions about

the relationship between law and morality and the justification for various legal institutions.

There are roughly three categories into which the topics of legal philosophy fall: analytic

jurisprudence, normative jurisprudence, and critical theories of law.

Analytic jurisprudence involves providing an analysis of the essence of law so as to

understand what differentiates it from other systems of norms, such as ethics. Normative

jurisprudence involves the examination of normative, evaluative, and otherwise prescriptive

issues about the law, such as restrictions on freedom, obligations to obey the law, and the

grounds for punishment. Finally, critical theories of law includes critical legal studies and

feminist jurisprudence, challenge more traditional forms of legal philosophy.

1. Analytic Jurisprudence

The principal objective of analytic jurisprudence has traditionally been to provide an

account of what distinguishes law as a system of norms from other systems of norms, such as

ethical norms. As John Austin describes the project, analytic jurisprudence seeks “the essence

or nature which is common to all laws that are properly so called” (Austin 1995).

Accordingly, analytic jurisprudence is concerned with providing necessary and sufficient

conditions for the existence of law that distinguish law from non-law.

2. Normative Jurisprudence

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Normative jurisprudence involves normative, evaluative, and otherwise prescriptive

questions about the law. Here will examine three key issues: (a) when and to what extent

laws can restrict the freedom of citizens, (b) the nature of one’s obligation to obey the law,

and (c) the justification of punishment by law.

Characteristics of law

In a democracy, the objective of laws is to serve the best interests of the people and

reflect their highest aspirations. Laws are the useful, i.e., problem-solving, means of

government by which the ends of government are attained. Since laws have the same general

characteristics as all other useful products, they, too, can be designed and improved by the

same quality methods used to design and optimize other products.

Every Law Of Government Has The Following Characteristics:

Letter of the Law

A law is a written order a set of instructions, or software that provides directions for

human behavior. The entire written content of a law is the "letter of the law," and it is nothing

more or less than the fixed arrangement of its words and punctuation. The letter of the law

conveys the spirit of the law.

Spirit of the Law

Contained within the letter of the law is the purpose, or intent, which is termed the

"spirit of the law." For any given law, the spirit of the law is the hoped for change, or benefit,

that the law will produce, as predicted by the designers of the law. In other words, laws are

tools that are intended to be useful. Since the spirit of the law is the reason for its existence,

the letter of the law is subordinate to the problem-solving intent of the law.

Sanctions

Laws are the forcible means by which a government achieves its goals; they are

coercions, restrictions, prohibitions, or commands for action that attempt to regulate or

change the behavior or status of those individuals and institutions that are subject to the law.

Subsidies, fines, and imprisonment are examples of mechanisms that may be used as the

forcible sanction of a law.

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Costs

All laws consume and divert resources. The costs to a government for the creation and

operation of its body of laws are borne by the people. To pay the direct costs of laws,

governments create and enforce additional laws (at additional cost to the people) to raise

revenue through sanctions such as taxes, fees, and fines.

Side Effects

Laws, like all other human creations, may or may not be useful, but they always

produce unintended side effects. The parameters used to measure the side effects of laws are

the human rights, living standards, and quality of life standards of the people, any or all of

which may be unintentionally degraded when a law is enforced.

Performance

The performance of a law is, simply, the measure of the problem-solving benefit of

the law minus the measured sum of its burdens (restrictions, costs, and side effects). If the

net benefit (benefit minus burdens) is positive, the law is useful. If the net benefit is zero, the

law is useless. If the net benefit is negative, the law is detrimental. For a democracy, the

only valid laws are those whose net benefit is positive.

Fallibility

Laws are the product of human creative efforts and are therefore fallible. They may

fail in their objective as a result of design defects or become outmoded. They may also incur

excessive costs or produce unacceptable side effects. Fortunately, laws, like every other

human-made product, may be improved by design changes (amendments) and they may be

repealed when they are found to be less than useful.

Sources of law

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Source means origin which something is ultimately derived and often refers to the

causes operating before the thing itself comes into being. Jurists differ widely to the origin of

law. One of the legal commentator traces its origin in general awareness of the people at any

point of time. Along with ethics, professional nursing conduct also is regulated by a variety of

laws. There are two major sources of law.

• Statutory Law

• Common Law

• Customs/ Customary Law

• Judicial precedents

Statutory Law:

Laws that are written by legislative bodies, such as Congress or State Legislatures are

enacted as Statutes.

Common Law:

It is also known as decisional or judge- made law. It is the law that is created through

the decision of judges as opposed to laws enacted by legislative bodies

Customs or customary law:

Custom is the most ancient of all the sources of law and has held the most important

place in the past though it is importance is now diminishing with the growth of legislation and

precedent. Custom is a habitual course of conduct observed uniformly and voluntarily by the

people concerned. No custom shall have the force of law if it in manner violates the

Fundamental Rights. A custom must have the following requisites: - (i) Antiquity (ii)

Reasonableness (iii) Continuous observance (iv) Conformity with Statute law and public

policy (v) Consistency (vi) Obligatory force. (vii) Peaceable enjoyment.

Judicial precedents:

This doctrine means adherence to the earlier decision and not unsettling things, which

are already decided. This doctrine is based on expediency and public policy.

Classification of Sources

(I) Formal sources – These are the sources from which the law derives its force and validity.

Of course, the only authority from which laws spring and derive force and validity is State.

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(ii) Material sources – `Material sources of law` refer to the various processes, which result

in the evolution of the materials, which are the constituents of law. Material sources may be

divided into:

a) Legal sources - These are the sources, which are recognized by the law itself as

authoritative e.g. i. Statute law - having its force in legislations; ii. Case law - having its

source in precedents; and iii. Customary law - having its source in customs.

b) Historical sources - The sources, which have no binding, force and which are not

recognized by law are referred to as historical sources e.g. (i) Juristic writings; (ii) Literary

works; and (iii) Foreign decisions.

Principal costs of a law of government

There are nine principal costs of a law of government:

1) The cost of the research and design effort that is required to create the law.

2) The cost of the legislature to conduct the legislative process and perform

legislative oversight of the law.

3) The cost to promulgate the law, its amendments, and eventual repeal.

4) The disbursement of funds from the treasury as specified by the law.

5) The cost to enforce the law.

6) The cost to administer and interpret the law in the courts of justice.

7) The cost of compliance: the time, labor, and funds that are expended by those who are

required to comply with the law.

8) The opportunity cost, or the loss of opportunity for individuals and institutions to conduct

alternative activities of high value, such as education or research, because the resources for

those activities were instead applied to the law.

9) The cost to assure and improve the quality of the law through quality assurance (QA) and

quality improvement (QI) programs.

Functions of law in nursing

The law serves a number of functions in Nursing.

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1) It provides a frame work for establishing nursing actions in the care of clients in legal.

2) If differentiates the nurse’s responsibility from those of other health professionals

3) Helps establish boundaries of independent nursing action.

4) Assists in maintaining standard of nursing practice by making nurses accountable

under the law.

Legal system in India

The main sources of law in India are the Constitution, statutes (legislation), customary

law, and case law. The statutes are enacted by Parliament, state legislatures and union

territory legislatures. Because India is a land of diversity, local customs and conventions that

are not against statue or morality or otherwise undesirable are, to a limited extent, also

recognized and taken into account by the courts while they administer justice in certain

spheres. Also, people of different religions and traditions are governed by different sets of

personal law with respect to matters relating to family affairs.

A unique feature of the Indian Constitution is the judicial system. A single integrated

system of courts administers both union and state laws. The Supreme Court of India, seated

in New Delhi, is the highest body in the entire judicial system. Each state or a group of states

had High Court under which there is a hierarchy of subordinate courts. The Chief Justice and

the other judges of the Supreme Court are appointed by the President. The Supreme Court

has original, appellate and advisory jurisdiction. Its original jurisdiction extends to the

enforcement of fundamental rights given by the Constitution and to any dispute among states

and the Government of India. The decisions of the Supreme Court are binding on all courts

within the territory of India.

While the judicial process is considered fair, a large backlog of cases to be heard and

frequent adjournments can result in considerable delay before a case is closed. However,

matters of priority and public interest may be dealt with expeditiously, and interim relief may

be allowed in other cases, where appropriate. At the village level, people are encouraged to

solve their local problems with help of "Panchayats." The Panchayat is a group of five

respected people of the village whose ruling on the matter is final. To encourage trade and

industry to have recourse to arbitration rather than time-consuming court litigation, the

existing arbitration law is proposed to be revised under the Arbitration and Conciliation Bill

1995.

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Supreme Court

The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive

original jurisdiction extends to all disputes between the Union and one or more states or

between two or more states. The Constitution gives an extensive original jurisdiction to the

Supreme Court to enforce Fundamental Rights. Appellate jurisdiction of the Supreme Court

can be invoked by a certificate of the High Court concerned or by special leave granted by the

Supreme Court in respect of any judgment, decree or final order of a High Court in cases both

civil and criminal, involving substantial questions of law as to the interpretation of the

constitution.

The President may consult the Supreme Court on any question of fact or law of public

importance. The Supreme Court of India comprises of the Chief Justice and not more than 25

other Judges appointed by the President. Judges hold office till 65 years of age.

High Courts

There are 18 High Courts in the country, three having jurisdiction over more than one

state. Bombay High Court has the jurisdiction over Maharashtra, Goa, Dadra and Nagar Haveli

and Daman and Diu. Guwahati High Court, which was earlier known as Assam High Court,

has the jurisdiction over Assam, Manipur, Meghalaya, Nagaland, Tripura, Mizoram and

Arunachal Pradesh. Punjab and Haryana High Court has the jurisdiction over Punjab, Haryana

and Chandigarh.

Among the Union Territories, Delhi alone has had a High Court of its own. The other

six Union Territories come under jurisdiction of different state High Courts. The Chief Justice

of a High Court is appointed by the President in consultation with the Chief Justice of India

and the Governor of the state. Each High Court has powers of superintendence over all courts

within its jurisdiction. High Court judges retire at the age of 62.

The jurisdiction as well as the laws administered by a High Court can be altered both

by the Union and State Legislatures. Certain High Courts, like those at Bombay, Calcutta and

Madras, have original and appellate jurisdictions. Under the original jurisdiction suits, where

the subject matter is valued at Rs.25, 000 or more, can be filed directly in the High Court.

Most High Courts have only appellate jurisdiction.

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Major legal systems of the world

Common law Civil law Socialist law Islamic law

Other names Anglo-American,

English, judge-made

Continental,

Romano-Germanic

Social Religious law,

Sharia Law

Source of law Case law,

statutes/legislation

Statutes/legislation Statutes/

legislation

Religious

documents, case

law

Lawyers Control courtroom Judges dominate

trials

Judges dominate

trials

Secondary role

Judges'

qualification

Experienced lawyers Career judges Career

bureaucrats,

Party members

Religious as well

as legal training

Degree of

judicial

independence

High

High; separate from

the executive and the

legislative branches

of government

Very limited

Ranges from

very limited to

high

Juries Provided at trial

level

May adjudicate in

conjunction with

judges in serious

criminal matters

Often used

lowest level

Allowed in

Maliki school,

not allowed

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Types of law

LAW

Public law Private law

- Administrative law - Civil law

o Contract law or law of obligations

o Law of torts

- Constitutional law - Labour law

- Criminal law - Commercial law

o Felony - Corporations law

o Misdemeanors - Property law

- Family law

Public Law

Public law is a theory of law governing the relationship between individuals (citizens,

companies) and the state. Constitutional law deals with the relationship between the state and

individual, and the relationships between different branches of the state, such as the executive,

the legislative and the judiciary. In most legal systems, these relationships are specified within

a written constitutional document. It refers to the body of law which regulates bureaucratic

managerial procedures and defines the powers of administrative agencies.

These laws are enforced by the executive branch of a government rather than the

judicial or legislative branches (if they are different in that particular jurisdiction). This body

of law regulates international trade, manufacturing, pollution, taxation, and the like. This is

sometimes seen as a subcategory of Civil law and sometimes seen as public law as it deals

with regulation and public institutions.

All public laws must be enforced by some aspect of government interference or

intrusion. In this sense, they are distinct from private laws in which one individual brings a

lawsuit against another. Private laws are enforced by litigation, while public laws are enforced

by law enforcement. Public laws include Constitutional law, criminal law, and

administrative law. The Constitution grants rights to individuals, but also vests them with a

responsibility not to do harm to others.

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1. Administrative law

  Administrative law is the body of law that governs the activities of administrative

agencies of government. Government agency actions can include rulemaking, adjudication, or

the enforcement of a specific regulatory agenda. Administrative law is considered as a branch

of public law. As a body of law, administrative law deals with the decision-making of

administrative units of government. Administrative law expanded greatly during the twentieth

century, as legislative bodies worldwide created more government agencies to regulate the

increasingly complex social, economic and political spheres of human interaction.

For example tribunals, boards or commissions those are part of a national regulatory

scheme in such areas as police law, international trade, manufacturing, the environment,

taxation, broadcasting, immigration and transport.

2. Constitution law

Constitutional law is a body of law dealing with the distribution and exercise of

government power. Constitutional laws may often be considered second order rulemaking or

rules about making rules to exercise power. It governs the relationships between the judiciary,

the legislature and the executive with the bodies under its authority. One of the key tasks of

constitutions within this context is to indicate hierarchies and relationships of power.

For example, in a unitary state, the constitution will vest ultimate authority in one

central administration and legislature, and judiciary, though there is often a delegation of

power or authority to local or municipal authorities. When a constitution establishes a federal

state, it will identify the several levels of government coexisting with exclusive or shared areas

of jurisdiction over lawmaking, application and enforcement.

3. Criminal law

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Criminal laws are also public laws. Criminal laws are laws that are made in order to

create an ordered society. If a person violates a criminal law, although their victim is another

individual, that person still violates the public law of society. Criminal law, or penal law, is the

body of law that relates to crime. It might be defined as the body of rules that defines conduct

that is prohibited by the state because it is held to threaten, harm or otherwise endanger the

safety and welfare of the public, and that sets out the punishment to be imposed on those who

breach these laws. Criminal law is to be distinguished from civil law. Indian Criminal Laws

are divided into three major acts i.e. Indian Penal Code, 1860, Code of Criminal Procedure,

1973 and Indian Evidence Act, 1872. Instead of their laws special Criminal Laws are also

passed by Indian Parliament i.e. NDPS, Prevention of Corruption Act, Food Adulteration Act,

dowry prevention act, Commission of Sati Act etc. thousands of minor laws are made in India.

i. Offences against persons

The Offences against the Person Act 1861 is an Act of the Parliament of the United

Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against

the person (an expression which, in particular, includes offences of violence) from a number of

earlier statutes into a single Act. For the most part these provisions were, according to the

draftsman of the Act, incorporated with little or no variation in their phraseology. It is one of a

group of Acts sometimes referred to as the criminal law consolidation Acts 1861. It was

passed with the object of simplifying the law. It is essentially a revised version of an earlier

consolidation Act, the Offences against the Person Act 1828 (and the equivalent Irish Act),

incorporating subsequent statutes.

(i) Offences against property

Crime against property is any criminal act that destroys another's property, or that

deprives an owner of property against the owner's will. The criminal law generally considers

these crimes less serious than violent crimes, or crimes against persons, but they can still

constitute very serious felony charges. Arson and vandalism are examples of crimes that

destroy another's property. Examples of crimes that unwillingly deprive an owner of property

are far more abundant, including larceny, embezzlement, receiving stolen goods, extortion

(blackmail), robbery (a combination of violent crime and crime against property), burglary,

and industrial espionage, to name just a few.

For Example:

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• The Nurse Practice Act does not give the nurse the authority to diagnose disease and

prescribe medication, regardless of the situation. The medical practice Act and the Nurse

practice Act on Advanced Nursing Practice contain this authorization. To give a

medication without an order is a violation of the law and is a crime, even though the client

may not be harmed. Violations of laws related to the care and distribution of controlled

substances is also a crime. Altering or changing narcotic records is a crime even if no

diversion of drugs occurred. While finding where the error in a narcotic record occurred

may be a tedious and time-consuming process, as a nurse, need to look beyond temporary

convenience to the potential consequences of action.

• Criminal offenses include stealing, assault, illegal drug use, etc.

Types of criminal law are:

• Felony

A felony is a crime punishable by death or by imprisonment in a state or federal prison

for more than one year. A felony is generally considered a crime of high seriousness. A person

convicted in a court of law of a felony crime is known as a felon. It represents a more serious

violation of the law, and carries heavier fines and longer periods of imprisonment, perhaps

even death.

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Felonies include but are not limited to the following:

•

•

•

•

•

•

•

• possession with intent to distribute of certain

•

•

• Murder

• Practicing medicine without a license

Aggravated assault and/or battery

Manslaughter

Vehicular homicide

Arson

Burglary

Tax evasion

Various forms of fraud

The manufacture, sale, distribution, or

types and/or quantities of illegal drugs

In some states, the simple possession (possession without intent to distribute, e.g., for

personal use) of certain types of illegal drugs, usually in more than a certain quantity

but regardless of quantity for some drugs in some jurisdictions (such as Virginia for

cocaine and heroin)

Grand larceny or grand theft, i.e., larceny or theft above a certain statutorily

established value or quantity of goods

•

ng

f justice

raud

ingement

bation, or recognizance bond

Vandalism on federal property.

• Treason

• Kidnappi

• Obstruction o

• Perjury

• Cheque f

• Copyright infr

• Child pornography

• Mail and wire fraud

• Violating parole, pro

• Threatening an official (police officer, judge)

• Misdemeanors

are less serious crimes punishable by fines or by imprisonment in Misdemeanors

facility other than a prison for one year or less. It is a lesser criminal act that is less severe than

a felony and more severe than a regulatory offense. Being arrested for a misdemeanor may not

mean a lengthy prison sentence, but it can seriously affect job prospects and certain civil

privileges.

For example:

s driver that gets his or her first DUI may be illegible for future licensing.

ted

individuals causing a disturbance in a private or public area. Intoxication can be caused by

d social workers are felonies, an exception to most simple assault laws.

Private law

• A school bu

• Public intoxication is a misdemeanor. Public intoxication generally involves intoxica

alcohol or drugs.

• Simple assault is a common example of a misdemeanor. Simple assault on police officers,

elected officials an

An example of simple assault can be attempting to cause someone physical harm or

simply invading someone's personal space.

law is that part of a civil law legal system which is part of the jus commune

that involves relationships between individuals. It is to be distinguished from public law,

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Private

which deals with relationships between both natural and artificial persons (i.e., organizations)

and the state, including regulatory statutes, penal law and other law that affects the public

order. In general terms, private law involves interactions between private citizens, whereas

public law involves interrelations between the state and the general population. The concept of

private law in common law countries are little broader, in that it also encompasses private

relationships between governments and private individuals or other entities. That is,

relationships between governments and individuals based on the law of contract or torts are

governed by private law, and are not considered to be within the scope of public law.

Types of private law

• Civil law

o Contract law or law of obligations

of torts

• Comme

law

bor Law

d labour law or employment law) is the body of laws,

administrative rulings, and precedents which address the legal rights of, and restrictions on,

ting employment in India. There are over fifty

national laws and many more state-level laws. Traditionally Indian governments at federal and

o Law

• Labour law

rcial law

• Corporations

• Property law

• Family law

1. Industrial law/ La

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Labor law (also calle

working people and their organizations. As such, it mediates many aspects of the relationship

between trade unions, employers and employees. In most countries however, no such

distinction is made. However, there are two broad categories of labor law. First, collective

labor law relates to the tripartite relationship between employee, employer and union. Second,

individual labor law concerns employees' rights at work and through the contract for work.

The labor movement has been instrumental in the enacting of laws protecting labor rights in

the 19th and 20th centuries. Labor rights have been integral to the social and economic

development since the Industrial Revolution.

Indian labor law refers to laws regula

state level have sought to ensure a high degree of protection for workers. So for instance, a

permanent worker can be terminated only for proven misconduct or for habitual absence.

a) Collective labor law

• The Industrial Disputes Act (1947) requires companies employing more than 100

workers to seek government approval before they can fire employees or close down.

In practice, permissions for firing employees are rarely granted.

• Trade Unions Act 1926

• Provisions of the Factories Act, 1948

b) Individual labor law

• All India Organization of Employers points out that there are more than 55 central

labour laws and over 100 state labour laws.

.

t 1966

1936

1923

ely complex body of law, with several different taxes levied

by different governments. A tax is a financial charge or other levy imposed upon a taxpayer

• The Contract Labor Act (1970) prohibits companies from hiring temporary workers.

Women are not permitted to work night shifts

• Minimum Wages Act 1948

• Weekly Holidays Act 1942

• Beedi and Cigar Workers Ac

• The Payment of Wages Act,

• The Workmen’s Compensation Act,

• The Factories Act, 1948

2. Taxation and revenue law

Indian tax law is an extrem

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(an individual or legal entity) by a state or the functional equivalent of a state such that failure

to pay, or evasion of or resistance to collection, is punishable by law. Taxes are also imposed

by many administrative divisions. Taxes consist of direct or indirect taxes and may be paid in

money or as its labour equivalent. Income Tax is levied by the Central Government under the

Income Tax Act, 1961. Customs and excise duties are also levied by the Central government.

Sales tax is levied under VAT legislations at the state level.

Income Tax Act of 1961

The major tax enactment in India is the Income Tax Act of 1961 passed by the

a tax on income of individuals and corporations. This Act imposes

a tax on income under the following five heads:

• Income from salaries,

s, and

A (Driver and Vehicle Licensing Agency) collects vehicle excise duty,

which is then passed onto the treasury of the respected state/ country.

• The un-accounted money in the private hospitals can be taken by the income tax

3.

ompany" or "corporations" law) is the study of how

ectors, employees, creditors, and other stakeholders such as consumers, the

community and the environment interact with one another under the internal rules of the firm.

a human being)

Parliament, which imposes

• Income from house and property,

• Income from business and profession,

• Income in the form of Capital gain

• Income from other source

For example:

• The DVL

officers under tax law.

Company law

Corporate law (also "c

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shareholders, dir

Corporate law is a part of a broader company’s law (or law of business associations). Other

types of business associations can include partnerships, or trusts (like a pension fund), or

companies limited by guarantee (like some universities or charities). Corporate law is about

big business, which has separate legal personality, with limited liability or unlimited liability

for its members or shareholders, who buy and sell their stocks depending on the performance

of the board of directors. It deals with the firms that are incorporated or registered under the

corporate or company law of a sovereign state or their sub national states. The four defining

characteristics of the modern corporation are:

• Separate Legal Personality of the corporation (the right to sue and be sued in its own

name i.e. the law treats the company as

• Limited Liability of the shareholders (so that when the company is insolvent, they

only owe the money that they subscribed for in shares)

• Shares (usually on a stock exchange)

4. Eq it

body of rules, the primary source of which was neither custom nor written law

but the imperative details of conscience and which had been set forth and developed in the

uity had traditionally been followed even after it

became independent in 1947. However in 1963 the "Specific Relief Act" was passed by the

• Specific performance of contracts

W ication, the nature and tenure of the equitable reliefs available earlier

have been modified to make them statutory rights and are also required to be pleaded

5

law is an area of the law that deals with family-related issues and domestic

relations including:

u y law

“Equity is a

Court of Chancery.” - Henry Levery Ulman

In India the common law doctrine of eq

Parliament of India following the recommendation of the Law Commission of India and

repealing the earlier "Specific Relief Act" of 1877. Under the 1963 Act, most equitable

concepts were codified and made statutory rights, thereby ending the discretionary role of the

courts to grant equitable reliefs. The rights codified under the 1963 Act were as under:

• Recovery of possession of immovable property

• Rectification of Instruments

• Recession of Contracts

• Cancellation of Instruments

• Declaratory Decrees

• Injunctions

ith this codif

specifically to be enforced. Further to the extent that these equitable reliefs have been codified

into rights, they are no longer discretionary upon the courts or as the English law,

"Chancellor's foot" but instead are enforceable rights subject to the conditions under the 1963

Act being satisfied.

. Family law

19  

Family

• The nature of marriage, civil unions, and domestic partnerships;

• Issues arising throughout marriage, including spousal abuse, legitimacy, adoption,

surrogacy, child abuse, and child abduction

including divorce,

ild support and alimony awards).

6. Prope

Property often is protected by the criminal law. Trespassing is unlawful entry onto the

f another. Many criminal codes provide penalties for conversion,

embezzlement, theft, all of which involve deprivations of the value of the property. Robbery is

7

Trust law in India is mainly codified in the Indian Trusts Act of 1882, which came into

h 1, 1882. It extends to the whole of India except for the state of Jammu and

Kashmir and Andaman and Nicobar Islands. Indian law follows principles of English law in

Commercial law, also known as business law, is the body of law that applies to the

onduct of persons and businesses engaged in commerce, merchandising,

trade, and sales. It is often considered to be a branch of civil law and deals with issues of both

of exchange and partnership.

• The termination of the relationship and ancillary matters

annulment, property settlements, alimony, and parental responsibility orders (in the

united states, child custody and visitation, ch

• Paternity fraud and testing

rty law

real property o

a theft by force.

. Trust Law

force on Marc

most areas of law, but the law of trusts is a notable exception. Indian law does not recognize

"double ownership", and a beneficiary of trust property is not the equitable owner of the

property in Indian law.

8. Commercial law

rights, relations, and c

private law and public law.

For example: Carriage by land and sea; merchant shipping; guarantee; marine, fire, life,

and accident insurance; bills

20  

9 Civil law

l law is the legal system used in most countries around the world today. Civil law

codifications are closely based on Roman law, alongside some influences from religious laws

- Tort law - Contract.

Tort law

word 'tort' is derived from French word of the same spelling which means

"mischief, injury, wrong, or calamity", from the Latin tortus, meaning twisted. A tort, in

ined as a personal injury; or as "a civil action other than a breach of

contract." A person who suffers a tortious injury is entitled to receive "damages", usually

.

Civi

such as Canon law, continued to spread throughout Europe until the Enlightenment. It can be

classified as:

21  

The

common law jurisdictions, is a wrong that involves a breach of a civil duty (other than a

contractual duty) owed to someone else. It is differentiated from a crime, which involves a

breach of a duty owed to society in general. Though many acts are both torts and crimes,

prosecutions for crime are mostly the responsibility of the state, private prosecutions being

rarely used; whereas any party who has been injured may bring a lawsuit for tort. It is also

differentiated from equity, in which a petitioner complains of a violation of some right. One

who commits a tortious act is called a tortfeasor. The equivalent of tort in civil law

jurisdictions is delict.

Tort may be def

monetary compensation, from the person or people responsible or liable for those injuries. Tort

law defines what a legal injury is and, therefore, whether a person may be held liable for an

injury they have caused. Legal injuries are not limited to physical injuries. They may also

include emotional, economic, or reputational injuries as well as violations of privacy, property,

or constitutional rights. Tort cases therefore comprise such varied topics as auto accidents,

false imprisonment, defamation, product liability (for defective consumer products), copyright

infringement, and environmental pollution (toxic torts), among many others.

Theoretical Perspectives on Tort Law

and Normative Analytical

Instrumen

Analytical theories seek to interpret and explain tort law. More specifically, they aim

(i) to identify the concepts that figure centrally in tort's substantive norms and structural

features (the latter being the procedures and mechanisms by which the institution of tort law

enforces its substantive norms) and (ii) to explain how tort's substantive norms and structural

features are related. Key substantive norms include the rules of strict liability and fault

liability. Key structural features include the fact that tort suits are brought by the victim rather

than by the state and the fact that such suits are ‘bilateral’: victims (plaintiffs) sue their

putative injurers instead of drawing on a common pool of resources.

Normative theories seek to justify or reform tort law. Justificatory theories aim to

provide tort with a normative grounding, often by defending the values tort embodies or the

goals it aims to achieve. Reformist theories seek to improve tort law by recommending

changes that would bring the institution closer in line with its core values or would help it do a

better job of achieving its goals.

The distinction between analytical and normative theories is not exclusive. On the

contrary, few analytical theories are altogether devoid of normative elements and no normative

theory is ever devoid of analytical elements.

tal and Non-Instrumental

22  

Instrumental theories regard tort's essential features as explicable in terms of an

overarching purpose, typically, the remediation of some social problem, such as the problem

of allocating the costs of life's misfortunes. These theories do not always agree on the specific

principles that govern (or ought to govern) the allocation of costs. This is in part because they

disagree about the further purposes that tort serves (or ought to serve) in allocating costs.

Some theorists believe that tort aims (or ought to aim) at allocating costs efficiently. Others

believe that tort aims (or ought to aim) at allocating costs fairly. Both sorts of theorist treat tort

instrumentally, as a tool for solving a social problem.

Non-instrumental theorists do not see tort primarily as responding to a social

problem. They believe that tort is better understood as a way of giving expression to certain

moral or political principles.

Instrumental theorists typically identify tort's central concepts as accidents, costs, and

allocation. Non-instrumental theorists typically identify tort's central concepts as rights,

wrongs, and redress.

Corrective Justice

Corrective justice theory — the most influential non-economic perspective on tort law

— understands tort law as embodying a system of first- and second-order duties. Duties of the

first order are duties not to injure. These duties establish norms of conduct. Duties of the

second order are duties of repair. These duties arise upon the breach of first-order duties. That

second-order duties so arise follow from the principle of corrective justice, which says that an

individual has a duty to repair the wrongful losses that his conduct causes. For a loss to be

wrongful in the relevant sense, it need not be one for which the wrongdoer is morally to blame.

It need only be a loss incident to the violation of the victim's right not to be injured — a right

correlative to the wrongdoer's first-order duty not to injure.

4. Retributive Justice

23  

Many theorists believe that a principle of retributive justice — says, that the

blameworthy deserve to suffer — does a good job of interpreting and justifying criminal law.

Yet most theorists think that such a principle does a rather poor job of interpreting and

justifying tort law (except, perhaps, for the part of tort law concerned with punitive damages).

First, the concept of responsibility at play in tort law is that of ‘outcome responsibility,’ not

moral responsibility. Tort asks whether a given loss is something that the defendant in some

sense owns. It does not ask whether the defendant's action is something for which he is

morally to blame. Second, the duty of repair in tort is in essence a debt of repayment. Like

other debts of repayment, it can be paid by third parties — and not just when the creditor (the

plaintiff) has authorized repayment. By contrast, ‘debts’ incurred as a result of criminal

mischief can never be paid by third parties.

 

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24 

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1. Unintentional Tort

Unintentional tort leads to injury, property damage or financial loss. In the event of an

unintentional tort, the person who caused the accident did so inadvertently and typically

because he or she was not being careful. The person who caused the accident is considered

negligent because he or she failed to exercise the same degree of care that a reasonable person

would have in the same situation. It can be classified into:

• Negligence

• Malpractice

a) Negligence

The standard action in tort is negligence. Negligence is a tort which depends on the

existence of a breaking of the duty of care owed by one person to another. The tort of

negligence provides a cause of action leading to damages, or to relief, in each case designed to

protect legal rights, including those of personal safety, property, and, in some cases, intangible

economic interests. Negligence actions include claims coming primarily from car accidents

and personal injury accidents of many kinds, including clinical negligence, worker's

negligence and so forth. Product liability cases, such as those involving warranties, may also

be considered negligence actions, but there is frequently a significant overlay of additional

lawful content.

25  

Example: One well-known case is Donoghue v Stevenson where Mrs. Donoghue

consumed part of a drink containing a decomposed snail while in a public bar in Paisley,

Scotland and claimed that it had made her ill. The snail had not been visible, as the bottle of

beer in which it was contained was opaque. Neither the friend who bought the bottle for her,

nor the shopkeeper who sold it, were aware of the snail's presence. The manufacturer was Mr.

Stevenson, whom Mrs. Donoghue sued for damages for negligence. She could not sue Mr.

Stevenson for damages for breach of contract because there was no contract between them.

The majority of the members of the House of Lords agreed (3:2 ratio) that Mrs. Donoghue had

a valid claim, but disagreed as to why such a claim should exist. Lord MacMillan thought this

should be treated as a new product liability case. Lord Atkin argued that the law should

recognise a unifying principle that we owe a duty of reasonable care to our neighbors. He

quoted the Bible in support of his argument, specifically the general principle that "thou shalt

love thy neighbor."

Negligence is a breach of legal duty to take care resulting in damage to the plaintiff.

This definition of negligence can be divided into four component parts that the plaintiff must

prove to establish negligence. The legal burden of proving these elements falls upon the

plaintiff.

Elements in determining the liability for negligence:

The elements in determining the liability for negligence are:

• The plaintiff was owed a Duty of care

• There was a Dereliction or breach of that duty

• The tortfeasor directly caused the injury.

• The plaintiff suffered Damage as a result of that breach

• The damage was not too remote; there was proximate cause.

The first element of negligence is the legal duty of care. This concerns the relationship

between the defendant and the plaintiff, which must be such that there is an obligation upon

the defendant to take proper care to avoid causing injury to the plaintiff in all the

circumstances of the case. There are two ways in which a duty of care may be established:

• The defendant and plaintiff are within one of the 'special relationship'; or

• Outside of these relationships, according to the principles developed by case law.

There are a number of situations in which the courts recognize the existence of a duty of

care. These usually arise as a result of some sort of special relationship between the parties.

Examples include one road-user to another, employer to employee, manufacturer to consumer,

doctor to patient and solicitor to client.

Types of Negligence

• Professional negligence

• Criminal negligence

26  

1. Professional Negligence

In India, health care professionals or medical doctors must have reasonable skills,

knowledge, and proper medical education and competence to carry on the practice of

medicine. If they fail in the criteria as narrated then they will be liable for incompetence in one

way or the other and may face:

(1) Liability in respect of diagnosis;

(2) Liability in relation to doctor’s duty to warn the patient about the risks involved.

(3) Liability in relation to the treatment to be carried out.

The cases of negligence in India are directly related to existing facilities, infrastructure

and level of acumen of medical professionals. In many cases nurses have been held liable for

negligent acts, such as

Example:

• Carelessly failing to lock the brakes on a wheelchair before transferring a client

• Leaving an infant on an examinations table without taking steps to prevent falling

• Failing to take the temperature of a client who complains of feeling warm and

lethargic

Verification of Professional Negligence:

First, a standard of care must have been established that outlines the level or degree of

quality considered adequate by a given profession. Standards of care outline the duties a

defendant has to plaintiff, or a nurse to patient. These standards represent the skills and

learning commonly possessed by members of the profession and generally is the minimal

requirements that define an acceptable level of care. Standards of care, which guarantee

patients safe nursing care, include organizational policy and procedure statements, job

descriptions, and student guidelines. Guidelines for standards of care are shown.

Second, after the standard of care has been established, it must be shown that the

standard was violated- there must have been a breach of duty. This breach is shown by calling

other nurses who practice in the same specialty area as the defendant to testify as expert

witnesses.

27  

Third, the nurse must have had the knowledge or availability of information that not

meeting the standard of care could result in harm. This is called foresee ability of harm. If the

average, reasonable person in the defendants position could have anticipated the plaintiffs

injury as a result of his or her actions, then the plaintiffs injury was foresee able. Being

ignorant is not a justifiable excuse, but by conducting investigations and hearings to ensure the

laws enforcement. Administrative laws are valid only to the extent that they are within the

scope of the authority granted to them by legislative body.

The fourth source of law is court decisions. Judicial laws are made by the courts to

interpret legal issues that are in dispute. Depending on the type of court involved, judicial or

decisional law may be made by a single justice, with or without a jury, or by a panel of justices.

Generally, initial trial courts have a single judge or magistrate, intermediary appeal courts have

three justices, and the highest appeal courts have nine justices.

Components of professional negligence:

28  

Elements of liability Explanation Example: Giving

Medications

1.Duty to use due

care(defined by the

standard of care)

2.Failure to meet

standard of care(breach

of duty)

3.Forseeability of harm

The care that should be

given under the

circumstances(what the

reasonably prudent nurse

would have done

Not giving the care that

should be given under

circumstances

The nurse must have

reasonable access to

information about

whether the possibility of

harm exists

A nurse should give

medications accurately,

completely, and on time

A nurse fails to give

medications accurately,

completely, or on time.

The drug handbook

specifies that the wrong

dosage or route may

cause injury.

Wrong dosage causes

4.A direct relationship

between failure to meet

the standard of

care(breach)and injury

can be proved

5.Injury

Patient is harmed because

proper care is not given

Actual harm results to

patient

patient to have a

convulsion.

Convulsion or other

serious complication

occurs.

2. Criminal negligence

These are the situations in which the actions of the professional fall outside the bounds

of simple error and reflect a serious lack of concern or attention to the safety of the patient.

Errors resulting in the serious injury or death of a patient are investigated and may be

prosecuted and tried by the criminal courts. A license to practice nursing may be temporarily

withdrawn while such changes are investigated and tried. If the individual is found innocent,

the license then may be restored. If the individual is convicted of the crime, the nursing license

may be revoked, in addition to sentencing and other penalties.

For Example:

In the state of Colorado, Criminal Charges were brought against three nurses for

negligent actions that resulted in the death of an infant. Through a series of actions by the

nurses, the infant was given a 10- fold overdose of (IV) Intravenous penicillin. This case

clearly shows that the state has the power to prosecute as a crime professional conduct that

results in serious harm or death. Nurses who commit felonies such as theft, abuse, or deliberate

harm to a patient are always charged under both criminal laws and the laws regulating nursing

practice. Nurses who commit felonies outside of the care setting can be prosecuted under

criminal law and under the law regulating nursing practice if the felony reflects on their fitness

to practice norm.

(b) Malpractice

29  

Malpractice is a term used for a specific type of negligence. It refers to the negligence

of a specially trained or educated person in the performance of his her job. Therefore,

malpractice is the term used to describe negligence by nurses in the performance of their

duties. The professional person must have had a professional duty toward the person receiving

the care.

For example,

• Failure to meet the standards of acceptable care which results in harm to another

person.

• Doing or Saying Nothing When Action Is Required

• Injuring a Patient With Equipment

• Improper Administration of Medication

Essential elements of malpractice:

Harm to an individual.

Duty of professional personnel towards an individual.

Breach of duty by the professional.

Breach of duty by the cause of harm.

Factors that contribute to malpractice claims:

A suit usually does not always follow the poor results or harm that may on occasion

occur in the course of nursing practice. Understandings of the factors that involve in

malpractice are:

• Social factors:

Health care is big business, and patients complain increasing of not being accepted and

respected as individuals. Patients are more willing to bring suit against someone who is part of

a large, impersonal system. Health costs are high and some people think hospitals and

physicians have the ability to pay large settlements, whether directly or through insurance. If a

patient’s own income is lessened or disrupted by an illness, he or she might bring suit as a

solution to economic difficulties. Increased public awareness of the size of monetary

judgments that have been awarded may also be an economic incentive to initiating a suit.

• Suit- prone patients:

30  

Some people are more likely to bring suit, for real or imagined errors. If these people are

recognized as being suit- prone patients, it is possible for nurse to protect herself through

increased vigilance regarding care and thorough record- keeping. Suit- Prone patients usually

are identified by over behavior in which they are persistent fault-finders and critics of

personnel and of all aspects of care. They may be uncooperative in following a plan of care

and sensitive to any perceived slight.

• Suit-prone nurses:

Nurses may also be suit-prone. Nurses who are insensitive to the patient’s complaints,

who do not identify and meet the patient’s emotional needs, or who fail to recognize and

accept the limits of their own practice may contribute to suite instituted not only against the

nurse but also against the employer and the physician. The nurse’s self-awareness is critical in

preventing suits.

Categories of negligence that result in malpractice:

1. Failure to follow standards of care, including failure to

• Perform a complete admission assessment or design a plan of care.

• Adhere to standardized protocols or institutional policies and procedures.

[E.g.: Using an improper injection site].

• Follow a physician's verbal or written order.

2. Failure to use equipment in a responsible manner, including failure to

• Follow the manufacturer's recommendations for operating the equipment.

• Check equipment for safety prior to use.

• Place equipment properly during treatment.

• Learn how equipment functions.

3. Failure to communicate, including failure to

• Notifying a physician in a timely manner when conditions warrant it.

• Listen to clients complaints and act on them.

• Communicate effectively with client. [E.g.: Inadequate or ineffective communication

of discharge instructions]

• Seek higher medical authorization for a treatment.

4. Failure to document, including failure to note in points medical record

• A client's progress and response to treatment.

• A client's injuries.

31  

• Pertinent nursing assessment information [E.g.: Drug Allergies].

• A physician's medical orders.

• Inform on telephone conversations and physicians, including time, content of

communication between nurses and physician, and actions taken.

5. Failure to assess and monitor, including failure to

• Complete a shift assessment.

• Implement a plan of care.

• Observe client’s ongoing progress.

• Interpret a client's signs and symptoms.

6. Failure to act as a point advocate, including failure to

• Question discharge orders when a client's condition warrants it.

• Question incomplete or illegible medical orders.

• Provide a safe environment.

Preventing malpractice claims:

The most significant thing can do to prevent malpractice claims is to maintain a high

standard of care. To do this, nurse must work at improving own nursing practice and also the

general climate for nursing practice where can work. The ways to prevent malpractice is:

A) Self -awareness:

Identify strengths and weaknesses in practice.

Be ready to acknowledge limitations to supervisors

Do not accept responsibilities for which not prepared.

Example: the nurse who has not worked in pediatrics ward for 10 years and accepts an

assignment to a pediatric unit without orientation and education is setting the stage for an

error to occur. The standard of care does not change for an inexperienced nurse.

B) Adapting proposed assignments:

32  

Nurses may find themselves assigned to units where they have little or no

experience with the types of patient problems they will encounter. It is reasonable to be

assigned to assist an overworked nurse in a special area if can assume duties that are

within own competence, and allow the specialized nurse to assume the specialized duties.

It is not reasonable or safe for nurses to be expected to assume the specialized duties.

For example: if a nurses is not prepared for coronary care, she might of to that unit,

monitor the IV lines, take vital signs, and make observations to report to the experienced

coronary care nurse; the experienced nurse they would be able to check the monitors,

administer the specialized medications, and make decisions. Note that this does fragment

the patient's care, and would not be appropriate as a permanent solution, but could

alleviate a temporary problem in a safe manner.

C) Following policies and procedures:

It is nurse’s responsibility to be aware of the policies and procedures of the

institution that employs. If they are sound, they can be an adequate defense against a

claim, providing they were carefully followed.

For example, the medication procedure may involve checking all medications against a

central medication Kardex. If nurses do this and there is an error in the Kardex, she might

not be liable for the resulting medication error because she followed all appropriate

procedures and acted responsibility. The liability would rest with the person who made

the error in transcribing the medication from the physician's orders to the Kardex. If,

however, nurse had not followed procedure in checking, she might also be liable because

she did not do any part in preventing error.

D) Changing policies and procedures:

As Nursing evolves, changes are needed in policies, procedures, and protocols.

Part of our responsibility as a professional is to work towards keeping these up to date

information. Often facilities that are reluctant to make changes based on the suggestions

of individual nurses are much more receptive to new ideas when the legal implications of

outmoded practice are noted. References such as the guidelines produced by the Agency

for Health Care Policy and Research (AHCPR) and articles with research results may

provide strong support for needed changes in practice.

E) Documentation:

33  

Nurses' records are unique in the health care setting. They cover the entire period of

hospitalization, 24hours a day in a sequential pattern. The record can be the crucial factor

avoiding litigation. Documentation is the record of observations made, decisions reached,

actions taken, and jute evaluation of the patient's response are considered much more

solid evidence than verbal, testimony, which depends on one's memory.

Clear documentation of a relevant data is important.

For legal purposes, observations and actions that are not recorded may be assumed not

to have occurred.

It needs to be factual, legible and clearly understandable. Only approved

abbreviations should be used.

Narrative should have clear statements, and errors should be corrected according to

the policy of the facility.

Liquid erasing fluid, erasures and heavy crossing out may be interpreted as attempted

fraud in record keeping.

Avoid any statement that implies negligence on the part of any health care provider.

Aware that their notes protect not only themselves but often other members of the

health care team and the facility.

Records might include a complete log of telephone calls to a physician and

consultation with any relevant supervisor.

2. Intentional torts

Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to

an individual, and that do so. Intentional torts have several subcategories, including torts

against the person, including assault, battery, false imprisonment, intentional infliction of

emotional distress, and fraud. Property torts involve any intentional interference with the

property rights of the claimant (plaintiff). Those commonly recognized include trespass to

land, trespass to chattels (personal property), and conversion.

34  

An intentional tort is any deliberate interference with a legally recognized interest, such

as the rights to bodily integrity, emotional tranquility, dominion over property, seclusion from

public scrutiny, and freedom from confinement or deception. These interests are violated by

the intentional torts of assault, Battery, trespass, False Imprisonment, invasion of privacy,

conversion, Misrepresentation, and Fraud. The intent element of these torts is satisfied when

the tortfeasor acts with the desire to bring about harmful consequences and is substantially

certain that such consequences will follow. Mere reckless behavior, sometimes called willful

and wanton behavior, does not rise to the level of an intentional tort.

For example:

• A hospital was sued for battery after a coronary care nurse resuscitated a client who had

expressed wishes not to be resuscitated.

• A client in radiology sued for battery when the nurse intentionally gave a sedative that the

client had specifically refused, and the client experienced a severe allergic reaction.

• The nurse who proceeds with an injection despite a client's objection could be guilty of

battery.

Types of intentional torts:

The types of intentional tort are classified as:

• Assault

• Battery

• Invasion of privacy

• False imprisonment

• Defamation-

Libel

Slander

1. Trespass law

Trespass is an area of tort law broadly divided into three groups:

Trespass to the person

Trespass to chattels

Trespass to land.

35  

Trespass to the person, historically involved six separate trespasses: threats, assault,

battery, wounding, mayhem, and maiming. Through the evolution of the common law in

various jurisdictions, and the codification of common law torts, most jurisdictions now broadly

recognize three trespasses to the person: assault, which is "any act of such a nature as to excite

an apprehension of battery"; battery, "any intentional and unpermitted contact with the

plaintiff's person or anything attached to it and practically identified with it"; and false

imprisonment, the "unlawful, obstruction or deprivation of freedom from restraint of

movement." So the types of intentional tort can be explained with trespass law.

Trespass to the person

Under English decision, Letang v Cooper says that intent is required to sustain a

trespass to the person cause of action; in the absence of intent, negligence is the appropriate

tort. In other jurisdictions, gross negligence is sufficient to sustain a trespass to the person,

such as when a defendant negligently operates an automobile and strikes the plaintiff with

great force. "Intent is to be presumed from the act itself." Generally, trespass to the person

consists of three torts: assault, battery, and false imprisonment.

(a)Assault

              An assault is carried out by a threat of bodily harm coupled with an apparent, present

ability to cause the harm. It is both a crime and a tort and, therefore, may result in either

criminal and/or civil liability. The term is often confused with battery, which involves physical

contact. The specific meaning of assault varies between countries, but can refer to an act that

causes another to apprehend immediate and personal violence, or in the more limited sense of

a threat of violence caused by an immediate show of force. Some jurisdictions have

incorporated the definition of civil assault into the definition of the crime making it a criminal

assault intentionally to cause another person to apprehend a harmful or offensive contact.

Section 351 in the Indian Penal Code

351. Assault—Whoever makes any gesture, or any preparation intending or knowing it

to be likely that such gesture or preparation will cause any person present to apprehend that he

who makes that gesture or preparation is about to use criminal force to that person, is said to

commit an assault. Explanation.—Mere words do not amount to an assault. But the words

which a person uses may give to his gestures or preparation such a meaning as may make

those gestures or preparations amount to an assault.

Examples:

36  

(a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to

believe that A is about to strike Z, A has committed an assault.

(b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely

that he may thereby cause Z to believe that he is about to cause the dog to attack Z. A has

committed an assault upon Z.

(c) A takes up a stick, saying to Z, “I will give you a beating”. Here, though the words used

by A could in no case amount to an assault, and though the mere gesture, unaccompanied by

any other circumstances, might not amount to an assault, the gesture explained by the words

may amount to an assault.

(b) Battery

Battery is "any intentional and unpermitted contact with the plaintiff's person or

anything attached to it and practically identified with it". The elements of battery common law

vary by jurisdiction. An act which, directly or indirectly, is the legal cause of a harmful contact

with another's person makes the actor liable to the other, if:

(a) The act is done with the intention of bringing about a harmful or offensive contact or an

apprehension thereof to the other or a third person.

(b) Contact is not consented to by the other or the other's consent there to is procured by

fraud or duress.

(c) The contact is not otherwise privileged.

Battery torts under Commonwealth precedent are subjected to a four point test to determine

liability:

1. Directness: Is the sequence of events connecting initial conduct and the harmful

contact an unbroken series?

37  

2. Intentional Act: Was the harmful contact the conscious object of the defendant? Did

the defendant intend to cause the resulting harm? Though the necessity of intent

remains an integral part of Commonwealth battery, some Commonwealth

jurisdictions have moved toward the American jurisprudence of "substantial

certainty." If a reasonable person in the defendant's position would apprehend the

substantial certainty of the consequences of his actions, whether the defendant

intended to inflict the injuries is immaterial.

3. Bodily Contact: Was there active (as opposed to passive) contact between the bodies

of the plaintiff and the defendant?

4. Consent: Did the plaintiff consent to the harmful contact? The onus is on the

defendant to establish sufficient and effective consent.

For Example:

• Playing a joke on a person that involves offensive contact.

• Performing surgery on the incorrect portion of a person's body

• Throwing an object at a person

• Poisoning a person's drink.

(c) False imprisonment

False imprisonment is defined as "unlawful obstruction or deprivation of freedom from

restraint of movement." In some jurisdictions, false imprisonment is a tort of strict liability: no

intention on the behalf of the defendant is needed, but others require intent to cause the

confinement. Physical force, however, is not a necessary element, and confinement needn't be

lengthy; the restraint must be complete, though the defendant needn't resist.

Conveniently, the American Law Institute's Restatement (Second) of Torts distills false

imprisonment liability analysis into a four-prong test:

1. The defendant intends to confine the plaintiff. (This is not necessary in

Commonwealth jurisdictions.)

2. The plaintiff is conscious of the confinement. (Prosser rejects this requirement.)

3. The plaintiff does not consent to the confinement.

4. The confinement was not otherwise privileged.

Example:

• Use of restraints in managing clients

• Civil laws protect the rights of individual persons within our society and encourage

fair and equitable treatment among people.

• Generally ,violations of civil laws cause harm to individual or property

38  

Prevention practices:

o Child correction:

Depending on the jurisdiction, corporal punishment of children by parents or

instructors may be a defense to trespass to the person, so long as the punishment was

"reasonably necessary under the circumstances to discipline a child who has misbehaved" and

the defendant "exercise prudence and restraint." Unreasonable punishments, such as violently

grabbing a student's arm and hair, have no defense.

o Consent:

Perhaps the most common defense for the torts of trespass to the person is that "to a

willing person, no injury is done," but shortened to "consensual privilege" or "consent." If a

plaintiff participates in a sporting activity in which physical contact is ordinary conduct, such

as rugby, they are considered to have consented. This is not the case if the physical contact

went beyond what could be expected, such as the use of hand gun during a fistfight, or where

the injuries were suffered not from the plaintiff's participation in the sport but inadequate

safety measures taken.

o Self-defense/Defense of Others/Defense of Property:

Self-defense, or non-consensual privilege, is a valid defense to trespasses against the

person, assuming that it constituted the use of "reasonable force which they honestly and

reasonably believe is necessary to protect them or someone else, or property." The force used

must be proportionate to the threat.

Trespass to Chattels

Trespass to chattels, also known as trespass to goods or trespass to personal property, is

defined as "an intentional interference with the possession of personal property, proximately

causing injury." While originally a remedy for the absorption of personal property, the tort

grew to incorporate any interference with the personal property of another.

39  

Generally, trespass to chattels possesses three elements:

1. Lack of consent. The interference with the property must be non-consensual. A claim

does not lie if, in acquiring the property, the purchaser consents contractually to

certain access by the seller. "Any use exceeding the consent" authorized by the

contract, should it cause harm, gives rise to a cause for action.

2. Actual harm. The interference with the property must result in actual harm. The

threshold for actual harm varies by jurisdiction. Example: an electronic message may

constitute a trespass if the message interferes with the functioning of the computer

hardware, but the plaintiff must prove that this interference caused actual hardware

damage or actual impaired functioning.

3. Intentionality. The interference must be intentional. What constitutes intention varies

by jurisdiction, however, the Restatement (Second) of Torts indicates that "intention

is present when an act is done for the purpose of using or otherwise intermeddling

with a chattel or with knowledge that such an intermeddling will, to a substantial

certainty, result from the act" and continues, "it is not necessary that the actor should

know or have reason to know that such intermeddling is a violation of the possessory

rights of another."

Remedies for trespass to chattel include:

• Damages

• Liability for conversion

• Injunction depending on the nature of the interference.

Trespass to land

            Trespass to land involves the "wrongful interference with one's possessory rights in real

property." Generally, it is not necessary to prove harm to a possessor's legally protected

interest; liability for unintentional trespass varies by jurisdiction. "At common law, every

unauthorized entry upon the soil of another was a trespasser", however, under the tort scheme

established by the Restatement of Torts, liability for unintentional intrusions arises only under

circumstances evincing negligence or where the intrusion involved a highly dangerous

activity.

40  

Subsoil:

Aside from the surface, land includes the subsoil, airspace and anything permanently

attached to the land, such as houses, and other infrastructure.

For example

• Drilling a directional well that bottoms out beneath another's property to access oil and

gas reserves is trespass, but a subsurface invasion by hydraulic fracturing is not. Where

mineral rights are severed from surface ownership, it is trespass to use another's surface

to assist in mining the minerals beneath that individual's property, but, where an

emergency responder accesses the subsurface following a blowout and fire, no trespass

lies.

• Even the possible subsurface migration of toxic waste stored underground is not

trespass, except where the plaintiff can demonstrate that the actions "actually interfere

with the owner's reasonable and foreseeable use of the subsurface “or, in some

jurisdictions, that the subsurface trespasser knows with "substantial certainty" that the

toxic liquids will migrate to the neighboring land.

Airspace:

The rights of landowners over airspace are quite limited. Objects hovering above a

person's property, though attached to the ground, may constitute trespass. However, should the

overhang fail to generate actual harm, the court may deny a plaintiff equitable relief despite

the technical trespass.

(d) Invasion of Privacy

41  

Invasion of privacy is the intrusion into the personal life of another, without just cause,

which can give the person whose privacy has been invaded a right to bring a lawsuit for

damages against the person or entity that intruded. It encompasses workplace monitoring,

Internet privacy, data collection, and other means of disseminating private information. Non-

public individual has a right to privacy from: a) intrusion on one's solitude or into one's private

affairs; b) public disclosure of embarrassing private information; c) publicity which puts

him/her in a false light to the public; d) appropriation of one's name or picture for personal or

commercial advantage.

The Supreme Court has ruled that there is a limited constitutional right of privacy based

on a number of provisions in the Bill of Rights and subsequent amendments. This includes a

right to privacy from government surveillance into an area where a person has a "reasonable

expectation of privacy" and also in matters relating to marriage, procreation, contraception,

family relationships, child rearing and education. The court has also recognized a right of

anonymity and the right of groups to not have to disclose their members' names to government

agencies. Indian Penal code for invasion of privacy is under 2C:14-9. Invasion of privacy,

degree of crime; defenses, privileges.

For example:

• Lack of privacy for the patients while procedures

• Medical professionals misbehaving with clients

• Unwanted exposure of body parts of the patients during surgery and delivery.

(e) Defamation

Defamation also called calumny, vilification, traducement which is the

communication of a statement that makes a claim, expressly stated or implied to be factual,

that may give an individual, business, product, group, government, or nation a negative image.

It is usually a requirement that this claim is false and that the publication is communicated to

someone other than the person defamed. Defamation is tarnishing the reputation of someone.

Defamation does not affect or hinder the voicing of opinions.

Types

• Slander

The common law origins of defamation lie in the torts of slander (harmful statement

in a transitory form, especially speech), each of which gives a common law right of action.

• Libel

42  

Libel is defined as defamation by written or printed words, pictures, or in any form

other than by spoken words or gestures. The law of libel originated in the 17th century in

England. With the growth of publication came the growth of libel and development of the tort

of libel.

Punishment for Defamation: Whoever defames another shall be punished with simple

imprisonment for a term which may extend to two years, or fine, or both.

However There Are Certain Exceptions in Defamation

1. It is not defamation to impute anything which is true concerning any person, if it is for

public good that the imputation should be made or published.

2. It is not defamation to express in good faith any opinion whatever regarding the

conduct or character of a public servant in discharge of his public function.

3. It is not defamation to express in good faith any opinion regarding the conduct or

character of any person touching any public question.

4. It is not defamation to publish a substantially true report or result of a Court of Justice

of any such proceedings.

5. It is not defamation to express in good faith any opinion regarding the merits of any

case, which has been decided by a Court of Justice, or the conduct of any person as a

party, or the witness or the agent, in such case.

6. It is not defamation to express in good faith any opinion regarding the merits of any

performance which an author has submitted to the judgement of the public.

7. It is not defamation if a person having any authority over another person, either

conferred by law or arising out of a lawful contract, to pass in good faith any censure

on the conduct of that other in matters to which such lawful authority relates.

8. It is not defamation to prefer in good faith an accusation against any person to any of

those who have lawful authority over that person with respect to the subject matter of

accusation.

9. It is not defamation to make an imputation on the character of another person,

provided it is made in good faith by person for protection of his or other's interests.

10. It is not defamation to convey a caution, intended for the good of a person to who

conveyed or for public good.

For example:

43  

• Disclosure of a false AIDS diagnosis may constitute defamation of character.

• A nurse who makes false statements about a client or co-worker in the client's

record or the local newspaper could be guilty of libel.

• Telling a client that another nurse is incompetent is slander.

(f) Statutory torts

A statutory tort is like any other, in that it imposes duties on private or public parties;

however they are created by the legislature, not the courts. One example is in consumer

protection, with the Product Liability Directive in the European Union, where businesses

making defective products that harm people must pay for any damage resulting. Liability for

bad or not working products is strict in most jurisdictions. The theory of risk spreading

provides support for this approach. Since manufacturers are the 'cheapest cost avoiders',

because they have a greater chance to seek out problems, it makes sense to give them the

incentive to guard against product defects. Another example is occupier's liability, which was

seen as overly complex and illogical; so many jurisdictions replaced the common law rules for

occupiers' liability with statutory torts. Statutory torts also spread across workplace health and

safety laws and health and safety in food produce. Such torts as often grouped in with quasi-

torts.

• Nuisance

Legally, the term “nuisance” is traditionally used in three ways: (1) to describe an

activity or condition that is harmful or annoying to others (example- indecent conduct, a

rubbish heap or a smoking chimney); (2) to describe the harm caused by the before-mentioned

activity or condition (example- loud noises or objectionable odors); and (3) to describe a legal

liability (responsibility) that arises from the combination of the two. The law of nuisance was

created to stop such bothersome activities or conduct when they unreasonably interfered either

with the rights of other private landowners (example- private nuisance) or with the rights of

the general public (example-public nuisance). The tort of nuisance allows a claimant (formerly

plaintiff) to sue for most acts that interfere with their use and enjoyment of their land.

For example: A brewery made stinking vapors which wafted onto a neighbor's property,

damaging his papers. As he was a landowner, the neighbor sued in nuisance for this damage.

44  

Nuisance is of two kinds:

1. Public

2. Private

Public Nuisance is an offence, which affects the public at large, or some considerable

portion of them. It depends upon the number of houses and the concourse of people in vicinity;

and the annoyance or neglect must be of a real and substantial nature. Acts which seriously

interfere with the health, safety, comfort or, convenience of the public or, which tend to

degrade public morals, have always been considered public nuisance if it is shown that they

render enjoyment of life and property uncomfortable. No prescriptive right can be acquired to

maintain a public nuisance.

For example:

• Nuisance in the road by a drunken man

• Nuisance by the political followers during strikes.

Private Nuisance is anything done to the annoyance or to hurt another and not

amounting to trespass. It is an act affecting some particular individual or individuals as

distinguished from the public at large.

A person is guilty of nuisance when he:

1. Does any act, or is guilty of an illegal omission, and

2. Such act or omission:

i. Must cause any common injury, danger or annoyance;

a. To the public, or

b. To the people in general who dwell or occupy property in the vicinity,

or

ii. Must necessarily cause injury, obstruction, danger or annoyance to any

persons who had rights to use.

45  

For example:

• Fight with the neighbors

• Rubbish heap

• Indecent conduct

Punishment: Whoever causes nuisance shall be punishable with imprisonment, or fine, or

both depending upon the discretion of the court.

(g) Economic torts

Economic torts protect people from interference with their trade or business. The area

includes the doctrine of restraint of trade and has largely been submerged in the twentieth

century by statutory interventions on collective labour law and modern antitrust or competition

law.

Contract law

A contract law is a legally enforceable agreement between two or more parties with

mutual obligations, which may or may not have elements in writing. Contracts can also be

formed orally (parol contracts). The remedy at law for breach of contract is usually

"damages" or monetary compensation. In equity, the remedy can be specific performance of

the contract or an injunction. Both remedies award the damaged party of the "benefit of the

bargain" or expectation damages, which are greater than mere reliance damages, as in

promissory estoppels. The main contract law in India is codified in the Indian Contract Act,

which came into effect on September 1, 1872 and extends to all India except the state of

Jammu and Kashmir. It governs entrance into contract, and effects of breach of contract.

Indian Contract law is popularly known as mercantile law of India. Originally Indian Sales of

Goods Act and Partnership Act were part of Indian Contract act, but due to needed

amendment there acts were separated from Contract Act. Contract act is the main and most

used act of legal agreements in India.

46  

Liabilities

A liability can mean something that is a hindrance or puts an individual or group at a

disadvantage, or something that someone is responsible for, or something that increases the

chance of something occurring (i.e. it is a cause).

Types of liabilities:

1. Accounts Payable: Amounts owed to others for goods and services received and assets

acquired, for which a bill has been received or approved. Any percentage of amounts due to

contractors that retains as a guarantee of performance may remain in a special account

established for retention. Document the accounts payable control account(s) with unpaid

invoice files, subsidiary ledgers, or other forms of subsidiary records. The accounting records

must distinguish between accounts payable to non- Federal entities and accounts payable to

other Federal agencies.

2. Accruals: Amounts owed by the Department for items or services received, expenses

incurred, assets acquired, or construction performed, for which a bill (e.g., progress billings,

grant reimbursement requests, and other billings) has not been received or approved.

Interest Payable: Interest payable represents liabilities for interest expense incurred

but not yet paid. These expenses typically arise from interest due on long-term debts,

capital lease obligations, and late payment of invoices. The accounting records must

distinguish between interest payable to non-Federal entities and interest payable to

other Federal agencies.

Accrued Payroll and Benefits: Accrue the unpaid wages and benefits that employees

have earned at the close of each accounting period. Generally, federal performance

awards are excluded.

3. Accrued Leave.

47  

• Annual Leave: Record the liability for annual leave at the wage at which the leave is

earned and adjusted each year to reflect pay increases, unused leave balances,

statutory limitations to leave amounts, and to reflect employees. Liabilities 11-3

transferred in or out during the year. Accrued leave for DOE employees will be

recorded as a liability.

• Compensatory Leave: Record compensatory leave the same as annual leave for

accrual purposes.

• Sick Leave: Accrue sick leave for contractor employees if a contractual requirement

exists for employees to be paid for unused sick leave. A liability for DOE employees

will not be accrued since payment is not made for unused sick leave.

• Exceptions: The minimum requirements are intended to provide a proper balance

between materiality and the high volume of cost accrual transactions, accruals should

ensure that the yearend financial statements present fairly the aggregate cost accruals

for the Department.

4. Non-Integrated Contracts and Purchase Orders: Accrue non-invoiced costs monthly if

the uncosted balance is greater than $1 million.

5. Deferred Revenues: Deferred revenues represent advance payments from others to cover

the cost of services, materials, or other assets that DOE will furnish in the future. The

accounting records must distinguish between advances received from other Federal agencies

and advances received from non-Federal entities. “Reimbursable Work, Revenues and Other

Collections.” Costs incurred in the performance of work for Federal and non-Federal

entities.

6. Funds Held for Others: A liability shall be established whenever DOE has physical

possession or responsibility for non-Government personal property or cash. This includes

certain funds that belong to others, payroll deductions and deposit funds. Funds held for

others also include amounts held in suspense accounts awaiting disposition or

reclassification. The individual details for each of these accounts reside in the asset accounts.

The balances in these accounts must be supported by schedules of voucher deductions,

collections, and transfers between accounts.

48  

7. Suspense Accounts: Suspense accounts include amounts arising in the course of

operations that cannot be analyzed readily and recorded to the proper account because of

inadequate information, uniqueness of the transaction, or similar complications. Temporarily

record such items to the suspense account to avoid undue delays to monthly closing.

Determine the proper account for all suspense items and record them accordingly as soon as

possible to ensure accurate financial reporting.

8. Appropriated Debt.

• DOE occasionally receives appropriations that provide programs with authority to

borrow funds. Borrowing authority is limited by the amounts specified in the

appropriation acts. Funds that are borrowed to finance appropriated obligation

authority must be repaid into the General Fund of the Department of the Treasury.

Interest shall be charged from the date the funds are credited to the appropriation until

the date of repayment.

• Power marketing administration legislation requires recoupment of appropriate funds

over a specified time period and rate of interest.

9. Contingent Liabilities.

(1) General. Contingent liabilities are potential liabilities that might become actual if certain

future events, beyond the Government’s control, result in losses or impairments of assets or

incurrence of liabilities.

(a) When a loss contingency exists, the likelihood that a future event or events will confirm

the loss or impairment of an asset or the incurrence of a liability can range from probable to

remote.

1. Probable: The future event or events are likely to occur.

2. Reasonably Possible: The chances of the future event or events occurring are more than

remote but less than likely.

3. Remote: The chances of the future event or events occurring are slight.

(b) Accrual and disclosure of contingencies, including programmatic impacts, vary

depending on probability of occurrence.

1. Probable and Estimable: Losses that are deemed probable and can be reasonably estimated

will be accrued as a liability. Disclosure of the nature of the accrual is necessary if the

financial statements would be misleading without such disclosure.

2. Probable but Inestimable: If the contingency is deemed probable but cannot be estimated, a

footnote disclosure should be made on the financial statements.

3. Reasonably Possible: May require disclosure depending upon significance and materiality.

49  

4. Remote: No accrual or disclosure required.

(c) Reporting thresholds for contingencies relative to litigations are provided in annual

guidance.

(2) Loan Guarantees and Commitments. Reserved

(3) Tort Claims. Tort claims are contingent liabilities and are disclosed in the financial

statements

10. Leases.

(1) A capital lease shall be treated as the acquisition of an asset and the incurrence of a

liability. All lease-purchases or capital leases.

(2) The maximum amount of the Government’s liability for an operating lease is the full

amount of the operating lease unless the lease includes a cancellation clause. In this case, the

maximum liability is the amount of the lease payments over the minimum lease period plus

any required cancellation payment. With operating leases, up-front budget authority must be

available to cover the maximum amount of the Government’s liability.

11. Unfunded Liabilities: Unfunded liabilities result from the receipt of goods or services or

occurrences of eligible events in the current or prior periods for which revenues or other

sources of funds necessary to pay the liabilities have not been made available through

Congressional appropriations or current earnings of the Department. The Department has

established specific liability accounts to record unfunded liabilities. The use of these accounts

is restricted to those liabilities specifically identified in the SGL.

12. Other Liabilities: Any other liabilities that have not been defined elsewhere should be

disclosed in the financial statements. The principle of materiality and full disclosure should

govern the inclusion of such liabilities. The nature of each liability should be identified and

reported, either by a footnote to the financial statements or by actual inclusion of an amount

in a liability account, if the potential amount due or a loss can be estimated.

50  

Areas of potential liability for nurses:

AREA EXAMPLES

Failure to monitor and Failure to recognize significant changes in a client’s

Failure to report significant changes in a client’s

btain a complete database

condition

asses

condition

condition

Failure to o

Failure to monitor a client as indicated by the client’s

Failure to ensure safe

se of restrictive services

r injury

Inappropriate use of equipment

ty Inadequate monitoring of a client

Improper u

Failure to identify a client’s risk fo

Medication errors s that are unclear

cedures in

medication administration

g reactions

Lack of communication in verbal or written medication

Failure to question medication order

Failure to adhere to established pro

Failure to recognize adverse dru

Lack of familiarity with communication

orders

Improper

implementation of skills

or procedures

in clinical skills

Performance of unfamiliar skills

ns based on

F

Failure to maintain currency

ailure to follow agency policy

Failure to initiate appropriate actio

assessment

Documentation errors to document nursing actions

Failure to document information relevant to a client’s

e with agency policies

Failure

condition

Failure to document in accordanc

51  

Legal regulation of nursing practice

1.

Among them ,powers

care providers, including RNs. Regul health care professions protects the public by

excluding uneducated or unlicensed persons from practicing in a health care profession and by

defining the nature and scope of professional

to carefully construct practice acts that excluded responsibilities addressed in the previously

adopted, well accepted definition of medical practice. The historic dominance of medicine in

.to challenge the nursing profession as nurse's

les such as nurse anesthetist, nurse midwife and nurse

practitioner.

• It also delineates the rules and regulations that govern nursing practice for the

ractitioner, the nurse anesthetist, and the nurse

clients independent of a physician's order must be

quirements for obtaining a license to practice

if nursing. The state board is created to assist in matters related to profession

licensing and conduct.

Nurse Practice Acts:

granted to states is the ability to regulate the practice of health

ation of the

practice. The nursing profession and others had

defining the health care professions continues

move into more advanced practice ro

Common Features of Nurse Practice Acts:

A nurse practice act is the most important law affecting nursing practice. Each state has

its own nursing practice act, and the definitions and descriptions of nursing sometimes differ

from state to state. This has created problems for the nursing profession, particularly with

regard to reimbursement for services.

• A Nurse Practice Act defines the practice of nursing; both registered professional

nursing and licensed practical nursing.

• The services may include assessing health-related topics, and providing supportive

care.

licensed practical Morse, the nurse p

midwife.

• The relationship of the professional nurse to other health care providers is outlined in

a nurse practice act.

• The care nurses provide to

consistent with the treatments ordered by the physician.

• A nurse practice act establishes the re

52  

nursing. Another, common feature of a nurse practice act is the creation of a state

board

• Finally, a nurse practice act defines professional misconduct.

2. Professional Misconduct:

Professional Misconduct is a violation of the act that can result in disciplinary action

against a nurse.

Examples of Professional Misconduct:

Exercising undue influence on the client

Moral unfitness

Revealing personal information without the client's prior consent

Practicing beyond the scope permitted is law.

Delegating professional responsibilities to a person not qualified perform them

Harassing, abusing, or intimidating a client physically or verbally

ord reflecting evaluation and treatment of a client

ion of a licensed professional.

the performance of professiona1 services

entifically accepted infection control techniques

isconduct are part of administrative procedure. A

ional Discipline, or

egations of

lty imposed. The disciplinary proceeding may

lties

tively mild to quite severe, and they may be

resolve a violation

involving a minor or technical matter.

The most serious penalty is revocation of the nursing license.

alties include censure and reprimand, a fine (not to exceed a

specified dollar amount), a requirement to perform community service, a requirement

Abandoning or neglecting a client

Failing to maintain a rec

Failing to exercise appropriate supervision over persons who can practice only under

supervis

Guaranteeing satisfaction or cure from

Failing to wear an identification badge

Failing to use sci

3. Disciplinary Actions:

Disciplinary actions for professional m

specific state agency, such as the Board of Nursing, the Office of Profess

the Office of Regulation of the Professions is designated to review all manage all

professional misconduct. The state agency investigations the allegation, prosecutes or settles a

disciplinary proceeding, and enforces the pena

involve a hearing before an administrative officer if a settlement cannot be reached. Pena

that a state agency can impose range from rela

temporary or permanent. An administrative warning may be issued to

53  

Other possible pen

to complete a specified course of education or training, and an annulment of

registration or license.

Suspension of license is another penalty that can be imposed.

A total suspension may be given for a specified period of time' or until a course of

therapy or treatment is completed.

A partial suspension, which allows you to work is nursing but not in the area or task

(e.g., giving medications) to which the suspension applies, is also possible.

The suspension could last until successful completion of a course of retraining.

ubstitutes, Feeding bottles and Infant Food (

92

(Regulation and prevention of Misuse) Act 1994

8. Industrial employment (Standing orders Act 1946)

10. Payment of wages Act 1972

protection Act 1986

La

on t

n as OSHA, established legal

It is periodically updated and

Hospital related laws

1. Central births and deaths Registration Act 1969.

2. Medical Termination of Pregnancy Act 1971

3. The Infant Mille S

Regulation of production supply and Distribution) Act – 19

4. Transplantation of Human organs Act 1994.

5. Prenatal Diagnostic Techniques

6. Drugs and cosmetics (Amendment) Act of 1986

7. Narcotics Drugs psychotropic substance Act 1985.

9. Employee state Insurance Act 1948

11. Consumer

ws affecting nursing practice

Several laws not directly focused on the practice of nursing have a significant impact

he way you must practice nursing. These laws include:

• Occupational Safety and Health Act:

Occupational Safety and Health Act of 1970 know

standards that define safe and healthful working conditions.

expanded, and it affects the nurse in two ways.

54  

1. It sets standards of working conditions. Example: OSHA directs the manner in which

potentially toxic or flammable chemicals are handled. The use and care of electrical

OSHA regulates.

inated equipment and supplies and

the types of isolation techniques used for infectious clients. Promoting health and

legal mandate.

•

address standards for drug development and

marketing. This law affects the process by which new drugs become available to clients. Most

documentation of controlled substances.

•

s in attempting to protect the public from unsafe and

•

The American Hospital Association (AHA) replaced its Patient's bill of Rights recently

ut what they should expect during their

hospital stay with regard to their rights and responsibilities. The brochure covers six areas

equipment is another area

2. Some of the requirements of the law dictate how you manage clients. Example: It

provides standards for the management of contam

safety as professional, obligation and

Controlled Substance Acts:

Several laws have been enacted that

significant is Comprehensive Drug Abuse Prevention and Control Act of 1970. This law was

enacted to regulate the distribution and use of drugs with the potential for abuse. The nursing

obligations under this law include proper storage and

Failure to meet the requirements of this law is grounds for charges of professional misconduct

and potential criminal action against nurses.

Health Care Quality Improvement Act (1986)

One of the difficult issue

incompetent health care providers has been the racking information related to adverse

licensure actions, malpractice payments, and adverse professional actions. The law which does

apply to nurses has limited the ability to health care practitioners who had adverse action taken

against them in one state from moving to another state without disclosing their previous

performance.

Patient's bills of rights

55  

with a straightforward brochure informing clients abo

described as the basics that clients and their families can expect in their treatment during their

hospital stay.

What to expect during Hospital stay?

1. High-quality hospital care.

2. A clean and safe environment.

3. Involvement in care.

o edical condition and information about medically appropriate

Understanding who should make decisions when patients cannot.

4. Protection of privacy.

or when nurse leave the hospital.

urance claims.

onsiderate and respectful care.

ent and prognosis in terms the patient can be

When it is not medically advisable to give such

should be made available to an appropriate

me, the physician responsible for

t to receive from his physician information necessary to give

patient also has

ponsible for coordinating his care.

ght to refuse treatment to the extent permitted by law and to be

ht to expect that within its capacity a hospital must have make

responsible response to the request of a patient for services. The hospital must provide

evaluation, service and/ or referral as indicated by the urgency of the case. When

Discussing m

treatment choices.

o Discussing treatment plan.

o Getting information from patients

o Understanding health care goals and values.

o

5. Preparing patients and their family f

6. Help with bill and filing ins

A Patient's Bill Of Rights:

1. The patient has the right to c

2. The patient has the right to obtain from his physician complete current information

concerning his diagnosis, treatm

reasonably expected to understand.

information to the patient, the information

person on his behalf. He has the right to know, by na

coordinating his care.

3. The patient has the righ

informed consent prior to the start of any procedure/ or treatment. The

the right to know the name, the physician res

4. The patient has the ri

informed of the medical consequences or-his action.

56  

5. The patient has the right to every consideration of his privacy concerning his own

medical care program. Case discussion, consultation, examination, and treatment are

confidential and should be conducted discreetly.

6. The patient has the right to expect that all communication and records pertaining to his

care should be treated ad confidential.

7. The patient has the rig

medically permissible, a patient may be transferred to another facility only after he has

received complete information and explanation concerning the needs for and

alternative to such a transfer.

8. The patient has the right to obtain information as to any relationship of his hospital to

other health care and educational institutions in so far as his care is concerned. The

ital proposes to engage in or perform

ojects.

•

ar what is absolutely none negotiating in

receive nursing care.

ndards and legally authorized scopes of practice.

3. Nurses have the right to a work environment that supports and facilitates ethical

nurses and its interpretive

statements.

patient has the right to obtain information as to the existence of any professional

relationships among individuals, be name, which is treating him.

9. The patient has the right to be advised if the hosp

human experimentation affecting his care or treatment. The patient has the right to

refuse to participate in such research pr

10. The patient has the right to know in advance what appointment times and physicians

are available and where. The patient has the right to expect that the hospital will

provide a mechanism whereby he is informed by his physician or a delegate of the

physician of the patient's continuing health care requirements following discharge.

11. The patient has the right to examine and receive an explanation of his bill regardless of

source of payment.

12. The patient has the right to know what hospital rules and regulations apply to his

conduct as a patient.

Bills of rights for registered nurses

The Bill of Rights for Registered Nurses is a tangible tool, which aids in improving

workplaces and ensuring nurses' ability to provide safe, quality patient care. The Bills of

Rights is intended to empower nurses by making it cle

the workplace.

The seven basic tenets of the Bills of Rights for Registered Nurses are:

1. Nurses have the right to practice in a manner that fulfills their obligations to society

and to choose who

2. Nurses have the right to practice in environments that allow them to act in accordance

with professional sta

57  

practice, in accordance with the Code of Ethics for

4. Nurses have the right to freely and openly advocate for themselves and their patients

without fear of retribution.

5. Nurses have the right to fair compensation for their work, consistent with their

knowledge, experience, and professional responsibilities

6. Nurses have the right to a work environment that is safe for themselves and their

. Nurses have the right to negotiate the conditions of their employment, either as

carry out the

ower to write the rules and regulations used in daily operations. The

candidates; nominates may be made by nurse's

ards of nursing range in size

to decision m of Nursing, to an advisory

eague for Nursing (NLN) in some

ental body.

ary codes.

patients.

7

individuals or collectively, in all practice settings.

Role of boards of nursing to ensure safe practice

The Board of Nursing (or its equivalent) is legally empowered to

provisions of the law. The membership of the board, the procedures for appointment and

removal, and the qualifications of board members are determined by the Nurse Practice act.

The board has the p

Governor of the state usually appoints the members of the State Board of Nursing. The law

specifies the occupational background of the

organizations and other interested parties. North Carolina is the only state in which the RN

members of the state board are elected by the RNs in the state. Bo

from 7 to 17 members.

The responsibilities of these centralized agencies may range from administrative matters

(such as collecting fees, managing routine license renewals, and providing secretarial services)

aking, relegating individual boards like the Board

status. They also cooperate with the ANA and the National L

matters, but maintain the separation that is required of a governm

58  

The Board of nursing typically must perform the following functions:

1. Establish standards for licensure.

2. Examine and license applicants.

3. Provide for interstate endorsement.

4. Renew licenses, grant temporary licenses, and provide for inactive status for those

already licensed who request it.

5. Enforce disciplin

6. Provide rules for revocation of license.

7. Regulate specialty practice.

8. Establish standards and curricula for nursing programs.

9. Approve nursing education programs

Journal Article

1. omestic Violence and the Criminal Justice System: An Overview

- Edna Erez, LL.B., Ph.D.

iolence has been considered a violation of the law.

ate partners for a long

ses about the research findings related to domestic

stem, along with current controversies concerning the

forcement, and related unfolding trends in the

ce through the criminal justice system.

- Eileen M. Croke EdD et al

ore nurses are being named defendants in malpractice lawsuits, according to

the National Practitioner Data Bank (NPDB). As per the current records the number of

hows no signs of

stopping, 1-3 despite efforts by nursin ent nurses of their

legal and professional responsibilities and limitations. A charge of negligence against a nurse

l Policies. Every Nurse should act as per the legal

guidelines

D

It is only recently that domestic v

Although men have battered, abused and mistreated their wives or intim

time, historically, wife or partner abuse has been viewed as a "normal" part of marriage or

intimate relationships. The article discus

violence and the criminal justice sy

justice approach to domestic violence, its law en

movement to address domestic violen

2. Nurses, Negligence, and Malpractice

More and m

malpractice payments made by nurses increased from 253 to 413. The trend s

g educators to inform nurses and stud

can arise from almost any action or failure to act that result in patient injury-most often, an

unintentional failure to adhere to a standard of clinical practice-and may lead to a malpractice

lawsuit.

Conclusion

Legal responsibility in nursing to practice nursing within the guide lines laid legal

guidelines for nursing practice while caring for parents since negligence may cause a great

distress to nurse parent and others as well as to reputation of the down by the law of

centre/state, statutory bodies and institutiona

59  

for nursing practice while instilled.

60  

Pp:235-237.

iane,(2000), Leadership and nursing care management,3rd edition,

dership roles and management function in

nursing.,Practice and theory.5th edition, Lippincott publications, Pp no.250-59.

s Judge Sanghi, (2009), Organisation behaviour, 8th edition, Pearson education

n, Pp.no.534-48.

.

Bibliography

Book Reference

1. A.Rebecca, Jones Patronis (2008), Nursing leadership and management: Theories,

Processes and Practice, 1st edition, Jaypee brother’s publication, Page no.339-342.

2. Clark (2010), Creative nursing leadership & Management, 2nd edition, Jones &Barlett

publication, Pp.160-177.

3. Goel, S.L.,Kumar.R,(2002),Management of hospital, 4th edition, deep publications,

4. Huber .L.D

Saunders publication, Page no.420-27,514-36.

5. Joseph.T, (2007) .Nursing management, 4th edition, Jaypee publication, Page No.247-

290.

6. Linda.A, (1999), Leadership,3rd edition, Mosby Publications, Page No;33-43.

7. Marguis ,B.L.,Huston,C.J,(2006),Lea

8. Robbin

publicatio

9. Sakharkar, (2009), Principles of hospital services and administration, 2nd edition,

Jaypee publication, Pp-320-345.

10. Tabish, S.A, (2005), Hospital and the health services administration, Jaypee

publication, PP no.250-58

Electronics sources

• http://www.icn.ch/images/stories/documents/about/icn code- english.pdf.

• http://www.Nursingtimes.net

• http://www.scribd.com/doc/visibility of Nurses.

• www.articlesbase.com/resumes-articles/the legal system

• all nurses.com/nclex-discussion-forum/law

• onlinelibrary.wiley.com/doi/abstract/Assertiveness- among- Professional- Nurses.