midwifery and the law

MIDWIFERY AND THE LAW

Presented by HEATHER WATSON LLB part- ner NEHMER DAVENPORT DEAN McKEE, at the Queensland State Conference, Townsville, 15-16 September, 1990.

STATE LEGISLATION PROVISIONS The control over the nursing profession in-

cluding the branch of midwifery is exercised by �9 Boards or Councils established through Acts and

Ordinances of the various States. Although each State has its own Act, their provisions tend to follow a common pattern. In Queensland the Nursing Act 1976 and its Regulations are applicable.

S.21(b) of the Act allows registration of midwifery nurses.

The following provision s are specifically applicable to midwives:

"S.37(2) No person registered as a midwifery nurse shall employ a person not registered as a midwifery nurse as her substitute"

"S.38 No person other than a midwife to practise midwifery

(l) A person, unless she is a registered midwifery nurse, shall not attend as a midwife any woman in childbirth. (2) The provisions of this section shall not

apply t o - (a) a medical practitioner (b) a person acting under the direction or

supervision o f a medical practitioner; o r

(c) aj~erson rendering assistance in a case ox emergency.

It has been held in a Victorian Supreme Court case of (Duvanel v Ward [1921]VLR 69) that a person practised as a midwife even though she did not attend the actual delivery provided she attended by way of assisting the mother during her confinement and notwithstanding that a medical practitioner also attended the patient.

The Nursing Act also contains detailed provisions entitling the Nurses Registration Board to take disciplinary action and to hold enquiries. If an allegation is made out the Board may suspend or cancel a nurses registration or impose a mone- tary penalty of up to $1,000.00.

One of the matters which entitles the Board to take action is as follows:

"S.31 Disciplinary Action (1) Where the Board considers it has rea-

sonable grounds to suspect that a registered nurse--

(e) has been guilty of gross negligence, malpractice or conduct discreditable to a registered nurse."

A similar provision in the Tasmanian Legisla- tion was considered by the Supreme Court of Tasmania in Re: Stockdale (1984) Aust. Torts Reports 80-600. A midwife was charged before the Nurses' Registration Board with professional misconduct in relation to the confinement of a patient and the birth to her of a still-born child. The midwife appealed against the Board's find- ings as follows:

(a) she had carried out "pre-natal supervision of the patient" without the authority or responsibility of a medical practitioner and

(b) she had failed to notify a medical practitioner of "an abnormality" that had occurred in the patient during pregnancy, namely, that the birth was unduly late.

The terms quoted above were used in Regula- tions 35 and 40 of the Nurses Registration Amendment Regulations 1979 (Tas) and were the subject of interpretation by the Court. It was held as follows:

In relation to (1) - - "Supervision" does not mean taking charge to the exclusion of the doctor but supervision may be delegated without abdi- cation of responsibility. Cosgrove J said,

"Supervision may be carded out on the authority of and on the responsibility of a medical practitioner. This does not in my view, envisage a doctor authorising, a midwife to take full responsibility for a patmnt. Rather it envisages the authorisation of a midwifery nurse to take full-time care of a patient provided that she is able to and does, consult with and report to a doctor about that care and any problems arising out of it. It envisages a delegation of authority to make decisions, provided those decisions are in some way reported back to and referred to the principal ie. the doctor."

In relation to (b) - - Lateness of birth is not itself an abnormality. His Honour continued:

"[The regulation] refers to a change in the physical condition of the patient which, although not properly described as an illness results in some part of the patient being abnormal. Con- ception is a change in physical condition but the resulting pregnancy is not an abnormality. A change in the position of a foetus may be an abnormality. Delayed birth may cause abnormal- ities of the body such as were canvassed before the Board. But the appellant was charged only with the failure to report lateness, not failure to report physical changes caused t h e r e b y . . . I am quite certain that the regular'ran does not require a nurse to tell a doctor what he already knows and which she knows that he knows. [The doctors] needed no telling that [the patient] was late and, [the midwife] was well aware of this: She

AUSTRALIAN COLLEGE OF MIDWIVES JOURNAL DECEMBER 1990 29

was therefore under no duty to noti~. Even it she had, on some incredibly strict reading of the regulation, a duty to notify, the failure to do so could not amount to professional misconduct."

NEGLIGENCE As nurses, not only do you need to be conscious of the possible intervention of the Board in the manner in which you practice, but you also need to be aware of the oversight generally of the community and the standards set by it as admin- istered by the law. George Bernard Shaw once said "We have not lost faith, but we have transferred it from God to the medical profession." This may well be correct in the light of the great many technological advances made in the last century in the field of medicine but it also has something to say about the high standard the community has come to expect from members of the medical profession. Consequently, there has been significant changes in recent years in the law affecting the liability of the medical profession when that standard is not met. You will all have heard stories of how the number of claims and the amount of those claims for medical negligence in the United States have skyrocketed recently. A result of this has been that the cost of obtaining professional indemnity insurance in that country is astronomical. I have heard that some doctors have displayed in their surgery a sign which reads that they are not covered by indemnity insurance. The implica- tion of this is that if a patient wished to take action against a doctor he would simply declare himself bankrupt and the patient would be un- able to recover anything. Thankfully, in Australia we have not yet reaced such a ludicrous stage, partly because of the relatively high standard of medical care which prevails here, but also because of the difficulty of satisfying all of the necessary elements to establish a case of negligence by applying the laws in Australia. In discussing further the principles of negligence I am using the term "medical practitioner" to include doctor, nurse, midwife or other health professional.

A. DUTY OF CARE In the past it has been necessary for a Plaintiff wishing to sue to establish there was a contractual relationship with the party being sued (1) and that that party had an entitlement to remunera- tion. (2) This is no longer the case. Thus in applying a duty of care to medical practitioners, provided there is a "proximity" to his patient and foreseeability of harm to the patient from a failure to exercise due care then his duty is that which is shared with other professional advisers. 1. Lindsey County Council -v- Marshall [1937]A.C.97. 2. Goode -v- Nash (1979) 21 S.A.S.R.419 In addition to an action for negligence, where

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there has been any harmful or offensive contact by one person to another without that person's consent there can also give rise an action for assault and battery. This applies equally to a medical procedure undertaken without consent, even to a particular birthing practice. I will deal later with the issue of informed consent to such procedures.

B S T A N D A R D OF CARE The accepted statement as to the standard of care expected of a medical practitioner is that of McNair J in his charge to the jury in Bolam -v- Friern Hospital Management Committee (1957) I WLR 582 as follows: "The test is the standard of the ordinary skilled man exercising and professing to have that spe- cial skill A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law this it is sufficient if he exercises the ordinary skill of an ordinary compe- tent man exercising that particular a r t . . , there may be one or more perfectly proper standards; and i fa medical man conforms with one of those proper standards then he is not negligent . . . I myself would prefer to put it this way" [A medical practitioner] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art." However, it is not sufficient merely that the practise is one approved by the profession. The Australian Courts hasve been reluctant to leave total responsibility for determining what ,is an accepted practice to the medical profession alone. In the case o f F & R (1983) S.A.S.R. 1989 King C.J. concluded at page 194: "In many cases an approved professional practice will be decisive. But professions may adopt unreasonable practices . . . The Court has an obligation to scrutinise professional practices to ensure that they accord with the standard of reasonableness imposed by the l a w . . . The ulti- mate question, however, is not whether the defendant's conduct accords with the practices of his profession or some part of it but whether it conforms to the standard of reasonable are de- manded by the law. That is a question for the Court and the duty of deciding it cannot be deleg.ated to any professional group in the community." Thus, in determining whether a particular action was negligent or not, and this will apply to a particular practice of midwifery, the court may be assisted by expert evidence as to the action being an acceptable medical practice. There will, however, be an overriding objective examination of the practice to determine if it is an acceptable practice from the community's point of view. An illustration of this is the current enquiry into Ward 10B of the Townsville General Hospital and the way in which the community is imposing its own standard as to what is acceptable practice in the field of psychiatry.

AUSTRALIAN COLLEGE OF MIDWIVES JOURNAL DECEMBER 1990

C. CONSENT TO TREATMENT The duty of a medical practitioner extends not only to the treatment of the patient but also to the information, advice or warning that should be given. In determining the duty to advise, the courts will apply similar tests of accepted medical practice as discussed previously, there is obvi- ously two conflicting considerations:- (1) the duty of the medical practitioner to act in what he considers to be the best interests of the patient. (2) the right of the patient to control his own life and to have the information necessary to do so. A secondary consideration to the medical practitioner's duty to advise it is a defence to an action for battery (trespass to the person) that the patient consented to the procedure. However it could be argued that the patient's consent to the procedure was not "real" because they were not informed of all the risks involved. It would appear to me that the considerations applicable to the risk of an action in negligence for failing to advise, or in battery apply equally in a midwife's advising a patient on a particular method of birthing. The argument in negligence is that the medical practitioner has a duty to give advice to a patient so they can decide if they wish to undergo .the treatment proposed; that duty is breached when the medical practitioner fails to inform the patient of all the material risks involved in the procedure; and if the patient would not have undergone the treatment had the risks been made known to the patient then the failure of the medical practitioner to adequately inform the patient is a cause of the loss or damage suffered by the patient. These principles were discussed in the recent case of Ellis v Wallsend District Hospital (1988) CLD No. 12730/81. This case involved a woman who had suffered quadraplegia following a cervical operation and alleged negligence of the surgeon in failing to explain the nature and extent of the operation and of the risk of serious injury accom- panying it. The following circumstances were held to be relevant in determining what a careful and responsible doctor should disclose to the patient: - the nature of the matter to be disclosed - the nature of the treatment - the desire of the patient for information - the temperament and health of the patient - the general surrounding circumstances. In applying these circumstances in the case it was decided that the surgery proposed was major surgery of an unusual type with gross conse- q.uences were misadventure to occur. In all the orcumstances both the prospect o f pain relief (the purpose of the operation) now being achieved and the risk of paralysis (which was slight) should have been mentioned by the doctor. There is a school of thought that the Australian courts should be following the lead of North

AUSTRALIAN COLLEGE OF MIDWIVES JOURNAL DECEMBER 1990

America, in favour of the laatient's rights of self determination ie/right to information to enable the patient to take control of his life. In the leading case of Reible v Hughes the following ethical principle was stated "Every human being of adult years and sound mind has a right to determine what shall be done with his own body." Having accepted this statment the court found that that right included the provision of all information necessary for the patient to make up his own mind about the treatment proposed. In the United States case of Canterbury v Spence (1972) 464 F 2d 772 it was decided that a doctor should disclose all "'material facts" involved in the proposed treatment: "A risk is thus material when a reasonable person (in regard to) what the physician knows or ought to know of the patient's position, would be likely to attache significance to the risk or cluster of risks.'" In the light of the considerations stated by the Australian Court in Ellis v Wallsend District Hospital it could be said that we are moving away from what the medical profession says is reasonable. However I do not believe that we have yet moved from what could be considered a ::reasonable doctor test" to a "reasonable patient test." Even if a medical practitioner is found negligent in failing to advise or warn it is still necessary for a plaintiffto establish that he would have refused the treatment had a full explanation been given, in order to recover damages. In Ellis v Wallsend District Hospital the court held the test of whether if advice had been given as to the risk of paralysis the patient would have undergone the operation, is a subjective one. But whether an objective or subjective test is applied, the evidence in that case did not establish that the patient would have rejected the operation if the doctor's information had been of the required standard.

D. LIABILITY OF HOSPITALS After hearing the extent to which medical practitioners, including midwives, can be held liable for their negligent acts or advice, you may begin to wonder, particularly those working within the hospital system, whether it is worth continuing to practice, given your potential exposure to liability. In a series of cases hospitals have been held to be vicarious liable for its medical officers nurses and other employees. In the case of Gold -v- Essex County Council [1942] 2 K.B. 293, the infant plaintiff had been treated by a radiographer in the employ of the defendant at a county hospital. As a result of the radiographer's failure to provide adequate screening material in giving Grenz - - Ray treatment, the infant plaintiff suffered injury to the face. The defendant as the hospital authority was held liable to the plaintiff. In the course of his

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judgment Lord Greene M.R. said as follows: "When a patient seeking advice and treatment such as that given to the infant plaintiff knocks at the door of the respondent's hospital, what is he entitled to expect? He will find an organisation which comprises consulting physicians and surgeons, presumably also house physicians and surgeons, a staff of nurses, equipment for admin- istering Grenz - - Ray treatment and a radiographer . . . employed to give that treatment . . . I cannot myself see any sufficient ground for say- ing that the defendants [ie the hospital] do not undertake towards the patient the obligation of nursing him as distinct from the obligation of providing a skilful nurse. Nursing, it appears to me, is just what the patient is entitled to expect from the institution and the relationship of the nurses to the institution supports the inference that '~hey are engaged to nurse the patients." In a case of Henson -v- Board of Management of Perth Hospital (1939)41 W.A.L.R. 15 the Plaint- iff attended the casualty department of a Perth Hospital for treatment to his left ear. A resident doctor ordered a pupil nurse of 18 months to give the plaintiff some drops, however the treatment was not recorded on the patient card. The doctor meant glycerine and acid carbol drops designed to have a mildly antiseptic and analgesic effect. The pupil nurse understood him to have ordered undiluted carbolic acid. The term was new to the nurse, who sought to check with the doctor but he was unavailable. She also checked with a staff nurse who although unsure proceeded to put the mixture into a bottle with instructions for the Plaintiff. The evidence was that when the staff nurse poured some of the acid carbol for the Plaintiff she burned her fingers. The Plaintiff damaged his ear drum as a result of using the drops and was left with a permanent hearing deficiency. The pupil and staff nurse were both found to be negligent. The evidence was that the pupil nurse should have known the terms involved but in any event she had not exercised due care in ascertaining whether she had obtained the correct medication. The doctor was negligent in giving inadequate instructions where the pupil nurse was involved and failed to note the medication on the chart. The hospital however was held vicariusly liable for all three. The development of vicarious liability on the part of the hospital has greatly assisted a plaintiff in proving his case. Previously a plaintiff needed to sue the individual doctor or nurse and ran the risk of failing in his claim against each even though the probabilities favoured one or either of those persons being negligent. Now he can sue the hospital, who will be responsible for the negligence of any one of its employees even if the plaintiffis not able to "'lay his finger on the exact person . . . who was responsible or to specify what he did wront."(3) 3. Grant v Australian Knitting Mills [1936] A.C.85 at 101

Those of you who are working within the hospital system may, therefore, be breathing a great sigh of relief. Not only do you have the support of the system in order to refer to others for a second opinion (as the pupil nurse attempted to do in Henson -v- Board of Management of Perth Hos- pital) as problems arise to hopefully avoid any mistakes, you have added security of knowing that if something does go wrong the hospital may be ultimately liable.

E. LIABILITY OF MIDWIVES AS INDEPENDENT CONTRACTORS What then of the midwife who works independently of the hospital system, as I understand there is a tendency to do? She is in the position of an independent contractor like a doctor or other medical adviser and all of the general principles of negligence discussed previously apply to her practice. Of necessity for her ought to be the existence of professional indemnity insurance. Perhaps one of the major considerations as an independent contractor is to know when to refer. Thankfully there are no reported claims of negligence against a midwife in this situation in Aus- tralia.

Some helpful guides may be given from a United States case of Cooper v National Motor Bearing Co 288p 2d 581(1955). This was an action brought against the company and a trained nurse employed by the company. The plaintiff suffered a puncture wound on the left side of the forehead when another employee allowed a piece of metal to slip. The nurse swabbed and treated the wound but did not probe it either then or on subsequent visits. Although the wound closed, a red mark eventual- ly appeared and after several months this spread and became puffy. Some ten months later the plaintiff went to a doctor and underwent opera- tions on what was found to be a basal-cell carci- noma and the evidence was that the cancer would probably reappear. In confirming the award of damages by a jury the appeal court said:

"A nurse's diagnosis of a condition must meet the standard of learning, skill and care to which nurses practising that profession in the community are held. A n u r s e . . , must make a sufficient diagnosis to enable her to apply the appropriate remedy. Usually she receives some history of the accident or illness from the patient, inspects a wound, and bases her choice of treatment on the deductions thus made. She has been trained, but to a lesser degree than a physician in the recog.ni- tion of the symptoms of diseases and injuries. She should be able to diagnose sufficiently to know whether it is a condition within her authority to t r e a t . . , or whether it bears danger signs that should warn her to send the patient to a physician."

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CONSUMER PROTECTION LEGISLATION

A. TRADE PRACTICES ACT 1974 (Com- monwealth)

S.51 of the Trade Practices Act provides that a corporation shall not in trade or commence en- .gage in conduct that is misleading or deceptive or Is likely to mislead or deceive. It is arguable that a plaintiffwho suffers damage because of a medical practitioner's failure to advise or because information given is misleading, may be able to recover damages under the Trade Practices Act. There are a few prerequisites.

(1) The defendant must be a trading or financial corporation. Individual practitioners and public hospitals would not be caught but it is argued that private hospitals could be caught if they are run by an incorporated company. 4

(2) The conduct must relate to "trade or commerce". It has been held to be sufficient where the conduct of a profession involves the provision of services for reward. 5

The advantages in proceeding under the Trade Practices Legislation is that it is likely to be less costly and it would be unnecessary to argue the questions of required standard of care and the relevance of a common practice.

4. Peter J M MacFarlane "What the Doctor Never Told - - A new approach "The Queensland Lawyer V. 10 p. 130 at 137 5. Bond Corporation Pry Ltd v Theiss Contractors Pry Ltd (1987) ASC 55-557.

B. FAIR TRADING ACT 1989 (Queensland) In line with other States, Queensland enacted

the Fair Trading Act last year. SS.37 and 38 are a repetition of SS 51A and 52 of the Trade Prac- tices Act. The definition of"trade or commerce" in S.4 includes any business or professional activ- ity.

There is no need for the defendant to be a trading or financial corporation. There would appear to be no doubt that those engaged in the provision of medical services would come within the ambit of the Act.

S.40 refers to the making of false or misleading statements concerning the need for any services or the performance characteristics &the services. This raises the issue of statements made by a medical practitioner as to the effect of a treatment.

CONCLUSION In conclusion, all professionals, whether solic-

itors, engineers, doctors or nurses are facing more and more challenges to their professions in their liability for work carried out and advice given. Whether we reach the stage that the United States has in the number of claims and the amounts paid remains to be seen. It is obvious that there is a growing interest in medico-legal matters and

the rights and interests of patients are being given increasing recognition. You may wish to give some further thought to the effect these issues are likely to have on the profession of midwifery in the future and how the profession can best meet these challenges.

BIBLIOGRAPHY 1. Bongiorno, B The Medical Treatment BLEC Workshop

'Medical Negligence' 14/7/89 p.19 2. Curtain D Consent to Medical Treatment BLEC Work-

shop 'Medical Negligence' 14.7.89 p.l 3. Deutsch R L Medical Negligence Reviewed The Austra-

lian Law Journal Vol 57 p.674 4. Fricke G I Medical Negligence The Australian Law Jour-

nal Vol 56. p.61 5. MacFarlane, PJM, What the Doctor Never Told - - A

New Approach The Queensland Lawyer Vol 10 p. 130 6. Manderson D Following Doctor's Orders: Informed Con-

sent in Australia The Australian Law Journal Vol 62 p.430

7. Mason and McCall Smith Law and Medical Ethics (2nd edition) Butterworth London 1987

8. O'Sullivan J Law for Nurses (3rd edition) The Law Book Company Ply Ltd Sydney 1983

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The steering committee of Nurses in Indepen- dent Practice (SA) wish to notify colleagues of its formation and invite expressions of interest from all nurses in independent practice. Independent practitioners are working in such specialities as Midwifery, Education, Psychiatry, Clinical Prac-

tice, Management, and Community Health.

The aim of the organisation is to provide a forum for discussion and a support group for individual practitioners in such matters as small business management and organisation.

Nurses are becoming more and more aware and challenged by the concept of independent practice. Society is demanding an increase in nursing services as a reaction to the economic demands put upon the individual and as an adjunct/alternative to existing health services.

Health insurance companies now recognise third party reimbursement for nursing services. Other developments towards recognition of nurses practising independently are being achieved.

All those interested please ring (08) 333 7835 and a member of the Steering Committee will contact you - - we welcome your written inquiry to: PO Box 336, UNLEY SA 5061.

Jen Byrne, Joy Nugent, Vicki Kindner, Leeanne Norton n Steering Committee.

AUSTRALIAN COLLEGE OF MIDWIVES JOURNAL DECEMBER 1990 _ _ 33

midwifery and the law

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