The law affects everybody and it cannot be ignored. Legal accountability is the prime form of accountability for every citizen, and nurses, like all other professionals, are personally accountable through the law for their actions or omissions. This individual legal accountability is channelled through the criminal and civil law and the courts.
The law maintains an important presumption: that ignorance of it will not excuse should legal action result. Therefore, as a matter of practical neces-sity nurses, like all other professionals, need to be aware of the legal aspects of their role. The nurse’s legal accountability also needs to be contrasted with the other forms of accountability that exist – and these can conflict with each other. It is also possible to view some as being more important than others.
Interests, rights and duties: the role of the law
The law performs a number of general functions in society. It articulates interests, rights and duties and chooses between them when they conflict.
Reported cases in health law show this process happening all the time and there can be many interests at stake. Sometimes the cases involve choices between life and death. Cases can involve the State, other individuals, healthcarers and the patient. There are a myriad number of issues that can be seen in the cases that come before the courts, ranging from abortion rights, rights and duties of children and parents regarding consent, refusal of treat-ment, rights of patients to refuse life-saving treatment amongst others.
These cases are decided in courts of law and the law can clearly be seen to be articulating rights and duties and resolving conflicts of interests.
The Ms B. case
The recent Ms B. case is a particularly good example of a court dealing with a very difficult life and death decision and articulating rights and duties. The case, Ms B. v. an NHS Hospital Trust [2002] EWHC (Fam) 429, was widely reported in the press. Ms B. was very ill and she did not wish to be kept artificially alive by the use of a ventilator. Dame Elizabeth Butler-Sloss, the President of the Family Division in the High Court of Justice, in deciding that Ms B. could refuse life-saving treatment made reference in her judgment to principles of autonomy, the sanctity of life, and assessing capacity. She stated in her judgment:
One must allow for those as severely disabled as Ms B., for some of whom life in that condition may be worse than death. It is a question of values Legal accountability 49
and, as Dr Sensky and Dr Atkins have pointed out, we have to try inad-equately to put ourselves into the position of the gravely disabled person and respect the subjective character of experience. Unless the gravity of the illness has affected the patient’s capacity, a seriously disabled patient has the same rights as the fit person to respect for personal autonomy.
There is serious danger, exemplified in this case, of a benevolent pater-nalism which does not embrace recognition of the personal autonomy of the severely disabled patient.
This quote mentions values, autonomy and paternalism, which are all key ethical concepts and the judge here can be seen to be balancing these and coming to a reasoned decision. It is difficult to imagine embarking on a more difficult and important legal task.
Dispute resolution, compensation and punishment
The law is also used to resolve disputes, for example, where a patient may have been injured by a nurse and sues for compensation. A practice nurse, for example, may have syringed an ear negligently (Parker & Wilson, 1992) and caused the patient injury. The nurse may deny negligence, and if the case is not settled beforehand the dispute will be resolved in court.
Establishing nursing negligence
The important issues to be determined in this case will be, first, whether the practice nurse owed a legal duty of care to the patient. Broadly speaking, a legal duty of care is owed to our neighbours, people to whom we are prox-imate and whom we can reasonably foresee will be injured by our actions or omissions. In the doctor-nurse-patient relationship this first element will nearly always be established as it is here, as there is a sufficiently close, prox-imate relationship.
Second, breach of the legal duty to care has to be established and the basic premise of the reasonable practice nurse would probably be used in the ex-ample in order to assess the appropriate legal standard of care to be exercised.
The court would seek to find out whether the nurse acted as an ordinary skilled practice nurse would have acted in the circumstances of the case. Expert nurse evidence would be given on this point and the court might look for the exercise of a medical standard of care in the circumstances (Tingle, 2001a).
Regard would also be had as to the conduct of the delegating GP: in other words, whether there was any evidence of wrongful delegation (General Medical Council, 2001). If unreasonable, negligent conduct is established, the person making the claim will then have to establish the third element, i.e.
that the injuries received were caused, or materially contributed to by, the negligent conduct of the practice nurse and doctor (who would be the defend-ants). The harm must also have been reasonably foreseeable, and if all this 50 The Legal Accountability of the Nurse
is established and negligence is found then monetary compensation in the form of damages will be awarded.
Vicarious liability
The GP employer of the practice nurse in the example given will also be liable for the negligence under the principle of vicarious liability. This principle oper-ates to make an employer liable, along with the employee, for any negligence caused by the employee. The negligent practice nurse, however, still remains personally legally liable for any wrongs and could still be sued personally by the injured patient though this would be unlikely. Practice nurses would be unlikely to have the financial resources available to be worth suing per-sonally. However they may have a professional negligence indemnity insur-ance policy from their trade union or medical defence organisation and this would be a relevant factor to consider. The Nursing & Midwifery Council (NMC, 2002a) considered making it a compulsory requirement for nurses, midwives and health visitors to have indemnity insurance but decided against doing this.
The aim of the law: compensation
The aim of the law in personal injury court actions, where a breach of duty has been proved, is to try and compensate the physically injured claimant (the patient in the above example) as fully as money possibly can for the injuries received, i.e. to put the claimant in the position they would have been in had the wrong not been committed. It is very difficult to put into monetary terms the value of a lost sense or faculty, but nevertheless an attempt is made. In criminal law the focus of the law is different because of the fundamental nature of what has occurred. The convicted person is seen as having committed a crime against society, and therefore society punishes. In civil law the defendant is viewed as having committed a wrong against an individual; therefore civil law is largely concerned with compensation.
Clinical negligence law today: all change?
Clinical negligence litigation is now high on the public agenda. The Govern-ment stated in the NHS Plan that it would look to make further changes to the way the NHS handles and responds to clinical negligence claims. Claims’
costs are rising and costs can exceed damages for lower value claims.
The National Audit Office (NAO, 2001) states the following key facts on clinical negligence:
• Around 10 000 new claims were received in 1999–2000.
• At 31 March 2000, provisions to meet likely settlements for up to 23 000 outstanding claims were £2.6 billion. In addition, it was estimated that a further £1.6 billion would be required to meet likely settlements for claims
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expected to arise from incidents that have occurred but not been reported.
• Only 24% of claims funded by the Legal Services Commission are successful.
• The total annual charge to NHS income and expenditure accounts for provisions for settling claims has risen seven-fold since 1995–96.
These facts are a cause of concern for patients, the Government and all those who work in and with the NHS. If we improve the quality of health-care then claims should be reduced. The Government has been attempting to instill good quality healthcare practices in the NHS by a whole raft of initiatives, which were mentioned above. They are also looking critically at the clinical negligence system itself and have issued a consultation paper on issues and reform and a Government White Paper is promised (Department of Health, 2001a, 2003).
The concept of patient accountability can be seen to be present in the con-sultation document. The concon-sultation paper states:
There are clear and common themes emerging through the great mass of public commentary on clinical negligence, which complement much of that regarding perceived weaknesses in the NHS complaints procedure, which we intend to reform as well. We need to develop:
• a more responsive and patient focused approach to both complaints and clinical negligence claims handling, which provides remedies more closely tailored to individual patient’s needs – including practical, non-financial and non-financial remedies which address concerns directly and quickly.
• greater openness in the NHS to concerns – so patients know they will be heard, and organisations can learn from mistakes – and links with other structures.
• ways of addressing the spiralling cost of clinical negligence claims and the time it takes to resolve them. (Department of Health, 2001a) Reform of the complaints system and the clinical negligence system seems inevitable; the issue is the precise extent of the reform (Tingle, 2001b).
Regulation, deterrence and education: the role of the law
The law has other general functions, such as deterrence, regulation and education.
The deterrent function
This operates when professionals see what happens to others who are neg-ligent or commit crimes. They do not wish to be in the same unenviable posi-tion and will reflect on their professional practice and alter it if necessary.
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The regulation function
This operates to check professional and public bodies like the NMC and the General Medical Council. The public body may be exercising its powers unlaw-fully and its actions could be challenged in a court and declared illegal.
The education function
This operates when court cases are reported in the professional nursing and legal literature, whereby more people become aware of the issues and will reflect on their professional practice and alter it if necessary. This education function can usefully be illustrated by the case of Crawford v. Board of Governors of Charing Cross Hospital, reported in The Times of 8 December 1953 (Tingle & Foster, 2002). The plaintiff, Mr Robert Joseph Crawford, was admitted to hospital for an operation to remove his bladder.
The operation involved a blood transfusion and his arm was extended at an angle of 80° from his body so that he could be given the transfusion. He suffered a loss of power in his arm, was later found to be suffering from brachial palsy, and sued for negligence.
The judge in the lower court based his finding of negligence on the anaes-thetist’s failure to read an article in the Lancet, which warned of the dan-ger of brachial palsy in these circumstances. The Court of Appeal allowed the appeal and found no negligence. Lord Denning stated that it would be putting too high a burden on a person to say that they must read every art-icle in the medical press, although there could be a case of negligence where a recommendation becomes so well proven, accepted and known that it should have been read.
If a contributor makes a point in a journal it could be negligence to just rush in and adopt the findings, and much depends on how widely accepted and regarded the research or article is. Mason & McCall-Smith (1994) ana-lyse Crawford and its current implications stating:
Failure to read a single article, it was said, may be excusable, while dis-regard of a series of warnings in the medical press could well be evidence of negligence. In view of the rapid progress currently being made in many areas of medicine, and in view of the amount of information confronting the average doctor, it is unreasonable to expect a doctor to be aware of every development in his field. At the same time, he must be reasonably up to date and must know of major developments.
It is an essential element of the professional and legal accountability of nurses that they keep reasonably up to date in their field of practice. A more recent case is Gascoine v. Ian Sheridan and Co. and Latham [1994] Med LR 437. This case involved a number of issues, one of which was the responsibility of a hospital consultant to keep informed about changes and developments in his speciality. Mr Justice Mitchell said that the consultant in question was a very busy man:
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who clearly had a responsibility to keep himself generally informed on main-stream changes in diagnosis, treatment and practice through the mainmain-stream literature such as the leading textbooks and the Journal of Obstetrics and Gynaecology. Equally clearly it would be unreasonable to suppose that [he] had the opportunity to acquaint himself with the content of the more obscure journals.
This case is authority for the proposition that all professionals should be able to demonstrate a personal, systematic and professional updating regime.
If nurses argue that they have not got the time to read the main journal or journals of their speciality or fail to attend update courses and just switch off, they are in a vulnerable position. If something untoward happened to a patient that they were treating and it is subsequently found that this incident could have been avoided if they had kept up to date, then they will be open to criticism. Much however will depend on the circumstances of the case.
Evidence-based healthcare and the courts
Allied to the professional updating issues discussed above is the court’s cur-rent approach to assessing expert nursing and medical evidence in a clinical negligence case. Judges and lawyers are not, generally speaking, qualified in medical and nursing matters and they have to rely on the evidence of experts.
An experienced nurse or doctor will give evidence in the case to say what they would have expected the reasonable nurse or doctor to have done in the circumstances and this helps the judge set the appropriate standard of care that should have been exercised.
This approach is much more evidence-based and less deferential than it used to be. Experts’ opinions must have a logical basis. Experts must have also directed their minds to the question of comparative risks and benefits and must have reached a defensible conclusion on the matter. This more judicially testing approach to expert evidence fits in well with the concept of clinical governance and what the Government is trying to do in their health-care reforms. The case which set the baseline for this new approach is Bolitho v. City and Hackney Health Authority [1998] Lloyd’s Rep Med 26.
The scandals of recent years
The widely reported medical scandals of recent years, e.g. Bristol and Ship-man to name but two, have also affected the way medicine and healthcare generally is perceived by the public and to an extent the judiciary (Bristol Royal Infirmary Inquiry, 2001; Shipman Inquiry Reports, 2002–2003).
Public deference towards doctors is not as great as it once was. Lord Woolf in The Times, 17 January 2001 stated the new judicial conventional wisdom on doctors:
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until recently the courts treated the medical profession with excessive defer-ence, but recently the position has changed . . . the over deferential approach is captured by the phrase: ‘doctor knows best’. The contempor-ary approach is a more critical approach. It could be said that doctor knows best if he acts reasonably and logically and gets his facts right.
Today the courts are more proactive and testing when they are dealing with a clinical negligence case. The courts can be seen now more strongly to advance the notion of patient healthcare to the court and the public. The courts can be seen to be acting as a strong channel and mechanism of healthcarer accountability.
The law affects all aspects of nursing
The law affects all aspects of nursing practice, from making a cup of tea to giving injections. In the case of Pargeter v. Kensington and Chelsea and West-minster Health Authority, reported in the Lancet of 10 November 1979, a patient was given a cup of tea the day after having an operation to remove a cataract. He drank the tea, vomited immediately and his left eye burst open.
Despite further corrective operations he eventually lost the sight in that eye.
The patient sued for damages but was unsuccessful because negligence could not be established. A number of issues were discussed in the case, including the practice of testing the patient’s tolerance to liquids by giving trial sips.
The judge felt that in this case it was highly improbable that the common surgical nursing practice of giving trial sips of liquid had not been followed.
In the case of Smith v. Brighton and Lewes Hospital Management Com-mittee, reported in The Times Law Report of 1 May 1958, the plaintiff received injuries when a course of streptomycin injections overran. The nursing sister was found to be negligent in not taking elementary precautions to stop this, and damages were awarded. She could have drawn a red line or a star on the treatment sheet to indicate the time when the prescription was to end. Since she did not do this extra doses were accidentally given by two other nurses.
A number of the functions of law have been identified, discussed and related to aspects of nursing practice. This process will be continued later in the chapter, when the nurse’s role in healthcare resource allocation and management is discussed, along with how the courts have become involved in these issues. However, it is first important in a book which looks at