the law topic 02 law 1.development of australian law 2.consent 3.restraint 4.documentation...

The Law

Topic 02 Law 1.Development of Australian Law2.Consent 3.Restraint 4.Documentation 5.Incident reports 6.Coroner 7.Negligence 8.Defamation 9.Bailment 10.Wrongful Disclosure 11.Court system

Controlling Unpredictability of health

Introduction

Accountability and responsibility

Code of conduct

Accountability and Responsibility

Review Accountability and ResponsibilityAccountability: the state of being answerable for one’s

decisions and actions. It cannot be delegated.

Responsibility: the obligation that an individual assumes when undertaking to carry out planned/ delegated functions. The individual who authorizes the delegated function retains accountability

In law and ethics what does it mean?• A nurse must practice in a safe and competent manner

(Code of Conduct)

• A nurse’s primary responsibility is to provide safe and appropriate nursing services. Any circumstances which may compromise professional standards, or any observation of questionable or unethical practice, will be made to an appropriate person or authority.

Code of Conduct

Code of Conduct

• If the concern is not resolved and continues to compromise safe and appropriate care, a nurse must intervene to safeguard the individual and notify the appropriate authority.

Code of Conduct

• A nurse must practice in accordance with laws relevant to the nurse’s area of practice

• They must ensure they do not engage in practices prohibited by such laws or delegate to others activities prohibited by those laws

Code of Conduct

• A nurse must respect the dignity, culture, values and beliefs of an individual and any significant other person.

• In making professional judgments in relation to individual’s interests and rights, a nurse must not breach the human rights of any individual.

Code of Conduct

• A nurse must treat personal information obtained in a professional capacity as confidential

• A nurse has a moral duty and a legal obligation to protect the privacy of an individual by restricting information obtained in a professional capacity to appropriate personnel settings and to professional purposes

c. Description of Law

The law of Torts

A tort is usually described as a civil wrong

This law, by awarding damages, compensates individuals whose personal rights, freedoms or interests have been infringed by others.

The torts most relevant to nursing are:

• Assault

• False imprisonment

• Negligence

• Negligent advice

• Defamation

• Bailment

Civil Law

• The person who initiates the action is called the plaintiff and the person they are accusing is the defendant

• The plaintiff has the responsibility of proving the wrong action.

• They only have to prove their case on the balance of probability. Therefore the standard of proof is lower than in criminal cases

Rights of patients

• Given by the law , ethics and professional standards

1. Development Australian of the Law

Rule of Law

• Basic principal in the Australian ( any) legal system

• People must obey the law and be ruled by it.

• No person is beyond the law

• ‘govern by the law and not by men’

Where does law come from

• 2 main sources of law in Australia are the common law and legislation

• Common law consists of the principles developed by judges in cases that come before them

• Legislation is the law passed by the Parliament, or some other bodies under delegation.

Federal and State Legislation

• Each State through their individual constitutions may pass laws for the peace order or good government of the State.

• Federal parliament may pass legislation as specifically determined by the Commonwealth Constitution

Parliamentary law

• One of the functions of a parliament is to enact legislation, known as Acts or Statutes, they are designed to regulate certain aspects of society

• An Act of parliament is considered to the primary source of the law.

• This means that the law contained in legislation has priority over common law.

Procedure

• An item of legislation will be known as a ‘Bill’ prior to it being finally passed in law when it then becomes and Act.

• There are many Acts of parliament at both State and Federal levels which regulate and control the practice of health professionals and the provisions of health services

Acts

• At the State level there are Acts which control the registration and regulation of health professionals, occupational health and safety and for providing avenues for complaints by health care consumers

Acts

• At the Federal level the legislation is primarily directed to issues of funding and regulating the Commonwealth health care agencies and services

Regulations

• One of the last section in an Act confers on the Governor-General the power to make regulations that may be necessary for the administration of the Act. Regulations provide the essential details of administration which can alter more frequently than an Act can be amended by parliament

Few words • Autonomy - self determination –Choose right to choose

• Fairness

• Legislature

• Bill - Act –

• Judiciary

• Policeman of law

• Common law

• Parliament law

The Nurses Act 1999

• Determines there will be a Nurses Board responsible for the regulation of nurses in South Australia.

• The board must fulfill all of its functions under the Act with a view to ensuring the community has access to nursing care of the highest standard and to regulate nursing in the public interest

Review of the Nurses Act

• Currently under review

• Consultation is occurring between a number of key organizations such as:

• RCNA (SA branch)

• ACMI (Aust College of Midwives)

• ANZCMHN (A&NZ College of Mental Health Nurses)

• ANF

• Members of general of nursing professions

Review of Nurses Act

• The Nurses Board of South Australia is a key collaborator in this review and has the mandate, functions and powers to administer the Act in the public interest

Other legislation

• Mutual recognition (SA) Act 1993 utilised by the Nurses Board of South Australia and Mutual Recognition Act 1992

( Commonwealth Act) adminstered by all Australian States and Territories

• Trans- Tasman Mutual Recognition (SA) Act 1999

• Administrative Appeals Tribunal Act1975

Other Legislation

• Births, Deaths and Marriages Registration Act 1996

• Children’s Protection Act 1993

• Coroners Act 1975

• Consent to Medical Treatment and Palliative Care Act 1995

• Controlled Substances Act 1984

• Drugs Act 1908

• Drugs of Dependence (general) Regulations 1985

Other Legislations

• Equal Opportunity Act 1984

• Firearms Act 1997

• Freedom of Information Act 1991

• Guardianship And Administration Act 1993

• Juries Act 1927

• Limitations of Actions Act 1936

• Medical Practitioners Act 1983

• Mental Health Act 1993

Other Legislation

• Occupational Health Safety & Welfare Act 1986

• Occupational Health Safety & Welfare Regulations 1995

• Ombudsmen Act 1972

• Pharmacists Act 1991

• Public and Environmental Health Act 1987

• Racial Vilification Act 1996

Other Legislation

• South Australian Health Commission Act 1976

• Supported Residential Facilities Act 1976

• Therapeutic Goods Act 1989

• Therapeutic Goods Regulations 1990

• Whistleblowers Protection Act 1993

• Privacy Act

• Aged Care Act 1997

The Register and Roll

• The 1999Act established a single register which records all persons that have met the entry to practice requirements for the registered nurse

• The roll records all persons who have met the entry practice requirements for the enrolled nurse.

2. Consent “Volunteer wiliness by the client to health intervention “

Consent

• It is a legal requirement that health professionals obtain a consent from patients prior to any form of contact

• Obtaining a patient’s consent before touching them converts what would otherwise amount to assault and battery in to lawful touching

Assault

• Assault involves the creation in the mind of another of the fear of imminent, unwanted physical contact. The threat does not need to involve any actual touching, nor does it need to be explicitly communicated

Battery

• The actual touching of the person without their consent

• The touching of the patient must be intentional

• The patient does not need to be aware. They can be asleep, comatose or anaesthetise.d

Consent

• For the act of consent to be legally or ethically valid it must be genuinely voluntary and can be given only by a person judged to be mentally competent.

• It is necessary the therapist disclose information appropriately and that patients comprehend information adequately.

The Major Elements of Informed and Valid Consent

• Competence of the patient

• Competence of the staff

• Disclosure all necessary information

• Volunteerism

• Understanding and acceptance by the patient

Categories of consent

a) Implied Consent

b) Verbal Consent

c) Written consent

a. Implied Consent

• The most common in the normal daily activities of health professionals.

• In clinical practice the nurse must ensure their understanding of what the patient has consented to is consistent with the understanding of the patient.

• “ Daily TPR , walking on to consultation room “

b. Verbal Consent

• Agreement to treatment is stated by the patient. Must be obtained for more invasive procedures

c. Written consent

• Hospital policy usually requires consent for invasive procedures to be obtained in writing and witnessed.

• It is the responsibility of the health professional carrying out the procedure to ensure that a valid consent is obtained

Variations in taking consent 1. Children 2. Emergencies3. Intellectual incapacity4. Refusal to consent

1.Children

• A parent or legal guardian is capable of consenting to the medical treatment of their child. Authority of the parent is not absolute and can be overridden by the courts or through legislative provisions

• Consent to Medical Treatment and Palliative Care Act 1995

• Any person over 16 years and over may consent to medical treatment

2. Emergencies

• ‘Doctrine of Emergency’ is used when a patient requires emergency treatment and is incapacitated to give valid consent.

• When the client has refused treatment, for example a blood transfusion on religious grounds, the health unit is powerless to override the client’s stated wishes

3. Intellectual incapacity

• Intellectually disabled persons may have consent to treatment provided on their behalf by a relative, a person appointed under the Guardianship and Administration Board Act 1993 as a guardian or by the Board itself. Only the Board is empowered, under legislation, to consent to medical treatments and procedures such as termination of pregnancy and sterilisation

4.Refusal to Consent

• Other than situations where there are specific legislative provisions which authorize a substitute decision-maker, no person has the legal ability to consent to the treatment of another adult

• The patient has the legal right to withdraw consent and refuse to continue to undergo the procedure, even if it will result in death or permanent physical injury

Bailment

• The process whereby goods are entrusted to another.

Case Study – Mrs Tweedle

See for The case of Mrs Tweedle

Case Study – Mrs Tweedle

• Can you find an example of possible:

Negligence?

Defamation?

Assult?

False Imprisonment?

Situations which relate to nurses• Refusing to allow a person to leave a premises (detention)

• Placing physical, chemical or mental restraints on a person, and thereby preventing them from freedom of movement ( restraint)

3. Restraint See document for nbsa Standard for the Use of Restraintnursesboardsouthaustralia

Restraint

• There is a standard for the use of restraint endorsed by the Nurses Board of South Australia. All registered and enrolled nurses should make themselves aware of the content and implications of this standard.

• There will be a policy for restraint in your organization. FOLLOW IT!

False Imprisonment

• Where a patient alleges that a health professional has interfered with their freedom of movement the action is referred to as false imprisonment

• Restraint may be:

1. Physical

2. Chemical

3. mental

4. Documentation See document - guiding principles for documentationapril 2006nursesboardsouthaustralia

Documentation

• The existence of adequate and appropriate documentation is a means of establishing whether or not a nurse has practiced according to professional standards

• Documentation means it is done and no documentation means it has not been done

Institutional Policies

• Many organisations have policies regarding who can make entries and whose entries must be countersigned by a registered nurse, who then shares the legal responsibility and accountability for what is written

Legal Requirements

• Patient care documentation is a legal requirement and can be used as evidence in courts for either civil or criminal proceedings

• Case notes must be kept for seven years after patient care has ceased or seven years after a child becomes an adult. This is based on the limitations of court action periods and also allows an extra year for the case to be heard.

Case Notes

• Are used as a written communication in hospitals and health agencies and are in effect, proof of evaluation and care.

Case notes:

• Provide information on the progress and condition of the client

• Record treatment provided

• Form a history for future consults

• May be used for teaching or research ( with client permission)

Important points in taking in case notes

1. Clear, Concise, Accurate

• Documentation must be objective and relevant, and worthy of independent scrutiny.

• The condition of the patient, their demeanor or state of mind may be used at a later time to provide evidence of an allegation of negligence, malpractice, or the degree of damage and disability sustained by the patient

2. Timing

• If a patient’s condition becomes unstable or deteriorates it would be necessary to carry out and document observations more frequently. It must be relevant to the event and be recorded in chronological order.

• It is not acceptable to go back and add information to the medical records once the health professionals becomes aware that litigation has been initiated

3. Even routines must be documented• Even the routine observations and assessments undertaken

on the patient must be recorded

• Jarvis v St Charles Medical Centre (1996)

4. Time and Date

• All entries must have complete date and time of the entry and the writer of the report clearly identified by the their signature and designated position.

• The 24 hour (military) clock is the most effective

5. Legible

• There is little value in maintaining records that are not able to be read or understood by others

6. Avoid documenting what you have not witnessed or assessed• Where the event has not been witnessed the

information is hearsay evidence

• If the patient relates an incident that has occurred without a witness, then the records should clearly reflect that it is the patient’s version.

• The principle also applies to charting of signing for work done or observations made by other health professionals. Each report should be an accurate record of what the person signing the entry knows to be true

7. Pages must be identified

• Each page of a patient’s medical records must identify them by name and numerical identifier i.e. MRN or DOB

8. Abbreviations

• Abbreviations and popular terms must conform with the institutions policy or protocols.

• There is always a danger using abbreviations that are not commonly known

9. Use objective and factual descriptions• Do not use ‘appears’ ‘apparently’ Write an accurate, specific

and factual description of the physical condition

• Eg ‘the patient’s speech was slurred and he was walking with an irregular gait.

10. Charting must not occur in advance• The health professional must never chart a report on a

patient in advance

11. Reports must not be tampered with• Reports should not be rewritten at a later time and entries

must be sequential following directly on from the previous report.

• This avoids the possibility of tampering with, adding to or backdating entries with information that may be detrimental and expose the health professional to legal liability

12. Errors should not be erased

• When an error is made in the recording of information the policy or procedure of the hospital should be followed.

• The usual procedure will require that a line is drawn through the erroneous material, identifying it as having been written in error and initial it.

12. Use ink

• Documentation in the medical records is to be written in ink.

• Follow the organizational policy regarding colours which may be used

13. Read the medical record

• Despite a verbal handover it is complimentary to the written report.

• There is always the possibility that the professional giving the verbal handover has forgotten something or failed to recognize the significance of information which became available during the shift.

• As a result information which may be critical to the patient’s care and treatment will be missed.

Computerised Records

• The use of information systems to create and maintain patient’s medical files has resulted in more accurate, easily accessed and up-to-date information on each individual patient.

Unacceptable Documentation

• 14/11

• Around 5 or 6

• Following argument

• Hit him on the head with an axe

• Cut about 15cms

• Drunk opinion statement

• Usual

• 7 sutures

• Signature scrawls

• Probably

• Completion of report

In cases of negligenceThe plaintiff's lawyer will be looking very closely at the

documentation in the clinical records and will especially look for the following

• Deliberate inaccuracies

• Deliberate alterations

• Destruction of part of a record

• Failure to record that a Dr’s orders have been followed through

• Failure to record administration of medications

In cases of negligence

• The plaintiff’s lawyer will be attempting to place doubt on the credibility of the defendant’s (nurse) professional practice. The lawyer has only to show that the nurse’s practice was such that it was foreseeable and probable that negligence could result.

Issues

• Potential threat to the privacy of the patient.

• Policies and protocols must be in place for the protection of the patient’s rights to privacy and confidentiality in relation to their health information

5. Incident Reports

Incident Reports

• One important area of documentation is that involving incident reports.

• Even when the nurse uses caution to provide safe patient care, accidents do happen.

• An incident form complete with all the facts, needs to be filed in the client’s case notes. The actions you undertake following an incident must be documented in the case notes also.

Incident Reports

• Identify unsafe practices and work environments

• Provide information about unusual occurrences

• May be used as a record of an event in a defense to a legal action report of staff failure to follow accepted practice/ documentation

Incident Reports

Are therefore potentially very important legal documents

It can be seen from the administration point of view the incident report is used at several levels.

• Identification of existing or potential problems

• Provision of adequate remedies where these have occurred.

Incident Reports

• Monitoring of the effect of remedies

• Elimination of unsafe practices ( industrial health and safety legislation requires employers to take specific measures for developing safe work environments)

• Prevention of workers’ compensation claims

• Prevention of and/ or protection in law suits

Incident Reports as Evidence

• Where an account of an unusual event is documented in an incident report it can be used, as can other medical records, to establish the facts for legal purposes

• This means that the incident report can provide protection of staff where it shows clearly that care was reasonable, and if the event was due to negligence, it can establish that reasonable steps were taken to remedy any harm caused, thus helping to lessen the damages for which anyone is liable

Checklist for Incident Reports

• Date and time of incident

• Place where the incident occurred

• Name of all parties concerned (written legibly)

• Brief but full accurate account of what the writer experienced ( no hearsay unless identifies as such)


• If the patient was harmed, their condition before the incident took place

• Any harm caused and to whom or what it was caused ( objective observations)

• Any action taken, and by whom it was taken (e.g. Dr called, relatives informed, treatment given)

• Any further treatment ordered and follow – up requirements ( such as observations, check ups)


• List of witnesses (legible)

• Where the report concerns faulty equipment, the equipment should be clearly identified: location and identifying number or name, and the sign which has been attached to the equipment warning of its fault should be identified.

Reporting a Serious Incident

• It is crucial that authorities are notified immediately, not only to provide are for anyone injured, but also to enable the hospital insurer and solicitor to be contacted. This should be done within hours of the event, by phone

• There is a difference between the incident report and any statement made to a lawyer. The latter may be protected by legal privilege.

Making a statement

• Nurses should avail themselves of legal advice if they are asked to make a statement, or wish to do so, and are in any way concerned that they may be legally implicated with what they say.

• Nurses should resist attempts to get them to make statements which they do not believe are a true representation of the facts, or to alter their statement.

Ownership

• Ownership of the medical records rests with the medical practitioner or the institution that created them, but the right to withhold the records in relation to public hospitals is overridden by the Commonwealth, State and Territory freedom of information legislation.

Any right of the health care provider to withhold the records is also subject to court orders and legislation which may compel the production of documents for the purpose of legal proceedings

Access to the Records

• During a period of hospitalization the patient’s daily records are securely stored away from public areas, and patients will be required to seek the approval of the treating medical physician prior to being permitted to access their documents.

• There is no common law right for a patient to access the information contained in their medical records

Access to the Records

• There are a number of mechanisms by which a patient, or their legal representative, may gain access to the information.

• These include: freedom of information and other relevant legislation; government policy; pursuant to the court process.

Limits of the obligation of Confidentiality• There are a number of circumstances that information is

required to be disclosed

• Public health legislation requires mandatory disclosure of suspected child abuse, and suspicious injuries.

• Notifiable diseases include AIDS, gonorrhea, syphilis, smallpox, hepatitis, typhoid, leprosy, cholera, and non infectious diseases such as cancer.

Notification

• Midwives, medical practitioners and nurses are required by legislation to notify the registrar of Births, Deaths and Marriages of any birth of death they attend.

• The Coroners Act imposes a legal obligation on medical practitioners to inform the Coroner of any death which occurs in circumstance specified in the legislation

6. Role of the Coroner

The Coroner

• The Coroner’s court forms part of the court hierarchy.

• The significance of the coroner lies in the power, inherent in legislation to public hearings on ‘reportable’ deaths (inquests) in which public issues can be considered.

• The coroner is involved in the investigation process, in order to determine the cause of death

Function of the Coroner

• To investigate deaths which occur in certain circumstances

• The coroner engages a detailed investigation drawing together the facts through an examination of the pertinent scientific data and calling witnesses the coroner considers are relevant to the inquiry.

Function of the Coroner

• The coroners finding include recommendations as to changes in practice or standards, where necessary.

• There is also some degree of communication with other agencies. For example, should a health professional’s conduct be of concern to the coroner it is likely the professional regulatory authority, such as the Nurses Board, may be sent the coroners report

Reportable Deaths

• The category of death which should be conveyed to the coroner is usually referred to as a ‘reportable death’

• Accidental, sudden or violent death or those arising from fires or drowning

• As a result of anaesthetic

• A death in a prison, psychiatric institution or in State care.

• When the deceased’s identity is unknown or there is no death certificate

Reportable Deaths

• The attending doctor or hospital administration is responsible for reporting the death.

• If the deceased is to have organs harvested and it is a ‘reportable death’ the coroner’s consent is required.

Specific Procedures and Documentation for the Coroner• Follow the institutions procedure for notifying the

coroner of the death.

• Fill in the specific documentation required to certify death

• Usually minimum interference with the body is the guiding principle.

• All tubing, catheters, endotracheal tubes, central and intravenous lines, urinary catheters and drain tubes are left in situ. They may be cut and tied or the entire tubing placed in a plastic bag and kept with the body

Coroners Court

• Findings from investigations conducted by the Coroner can be viewed on the website: www.court.sa.gov.au/courts/coroner

Eg Dorothy Squires: case where a nurse administered the wrong blood.

http://www.court.sa.gov.au/courts/coroner

Go through a day at work• Go through the tasks you will perform in a single working

day• Eg take handover• Perform ADL’s• Administer medications• Document• Speak to relatives• Admit and discharge patients• Patient education

7. Negligence