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Page 1 of 2

Ethics and Law for Australian Nurses
  • 3rd edition
  • Kim Atkins, Sheryl de Lacey, Rebecca Ripperger, Bonnie Britton
  • Published online:
    21 June 2018
    Print publication:
    01 September 2017
  • The third edition of Ethics and Law for Australian Nurses develops an innovative practical framework for understanding the ethical and legal dimensions of nursing practice in Australia. Taking a 'relational' approach to practice, the text foregrounds the concepts of personhood, vulnerability and the nurse-patient relationship as the source of a nurse's moral and legal obligations. This approach is central to the book's discussion of key ethical and legal concepts throughout the text including consent and autonomy, negligence and liability, confidentiality and trust, and culturally safe practice. This edition has been thoroughly revised to include the latest research and methods, updated legislation and links to professional documentation, along with a new chapter on aged care. Student learning is supported by case studies, legal case extracts and learning exercises. A new instructor companion website features a curated suite of multimedia resources and extension questions.

  • 11 - Issues in abortion and euthanasia

  • Kim Atkins, University of Tasmania, Sheryl de Lacey, Flinders University of South Australia, Rebecca Ripperger, Bonnie Britton, University of Tasmania
  • Book:
    Ethics and Law for Australian Nurses
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 249-267

  • Summary

    LEARNING OBJECTIVES

    In this chapter, you will:

  • ➔ Learn about current legislation pertaining to abortion and euthanasia

  • ➔ Understand some of the arguments for and against abortion

  • ➔ Distinguish between different types of euthanasia

  • ➔ Learn about some of the arguments for and against euthanasia

    • In Western Australia in October 2012, 81-year-old Herbert Erickson pleaded guilty to murdering his partner in a mercy killing. His partner had suffered a stroke on top of a severe form of paralysis that confined her to a wheelchair. The court heard that the couple loved each other and had made a murder-suicide pact. Mr Erickson had unsuccessfully tried to electrocute himself immediately after killing his partner. He was granted bail on account of his age. One month later, he reported to police as usual, returned his library books, then drove to a nearby beach and killed himself (Spooner 2012).

    This book has considered ethics in the context of human vulnerability. We are vulnerable because we can be affected by things, and we can be affected by things because we are physical beings – part of the world around us and subject to the passage of time. Consequently, a life can come to an end at any time. For this reason, death is not only completely normal, but inevitable. Nevertheless, death is typically regarded as something regrettable. As philosopher Bernard Williams notes, our experience of being alive is essentially of having an openended and indeterminate future. From this perspective, death is ‘an abrupt cancellation of indefinitely extensive possible goods’ (Nagel 1979: 9–10).

    Perhaps because of our mortality, it matters to us – as individuals and as a society – how we die. It is not unusual, for example, to hear expressions such as ‘a terrible way to die’ (meaning that a person has died in a way that no one would want to) or ‘it's a blessing that he died’ (meaning that death brought a peaceful end to suffering) or ‘a good death’, which usually means that a person has died in a way that they would have wanted. These considerations give rise to some philosophical reflections: Is death always a harm? And if it is not always a harm, can death sometimes be a good thing? (Luper 2009).

  • 4 - The nurse–patient relationship and the regulation of nursing practice

  • Kim Atkins, University of Tasmania, Sheryl de Lacey, Flinders University of South Australia, Rebecca Ripperger, Bonnie Britton, University of Tasmania
  • Book:
    Ethics and Law for Australian Nurses
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 77-103

  • Summary

    LEARNING OBJECTIVES

    In this chapter, you will:

  • ➔ Gain an understanding of the nurse's power in the nurse–patient relationship

  • ➔ Learn about the fiduciary nature of the nurse–patient relationship

  • ➔ Gain an understanding of the legal and moral responsibilities of the nurse–patient relationship

  • ➔ Develop your understanding of how to foster a therapeutic relationship with your patients

  • ➔ Develop your ability to identify risks in the nurse–patient relationship

    • Christine is a patient in the medical ward where you are working. She is anxiously awaiting some test results. You notice that she asks your fellow nurse, Carole, to call the resident doctor for her because she wants to ask the doctor some questions about things that are bothering her. Carole agrees, but then goes to morning tea.

    When you ask Carole why she hasn't called the doctor, Carole replies, ‘I could call the doctor but I know that she won't come until her regular round at 11.30 a.m. Christine will just have to wait. If she asks me again, I'll just say that the doctor is busy but will be here at 11.30. She isn't going to complain. She knows how busy these doctors are.’

    The focus of this chapter is the moral aspects of the nurse–patient relationship. Some people might think Carole is treating Christine with disrespect by misleading and then avoiding her. Others might think Carole is just being realistic. After all, the doctor really is busy and will not be free until 11.30 a.m. In order to work out whether or not this is an appropriate way to treat a patient, the nurse will need to have a good understanding of their responsibilities to their patients and the moral basis of those responsibilities.

    In Chapter 2, we noted that rights and obligations are like two sides of the same coin. A legal right comes with a corresponding obligation, or duty. A right is a legal entitlement to do something, and an obligation is the constraint upon individuals’ behaviour that comes with that entitlement. However, the nurse– patient relationship involves more than legalities. As discussed in Chapter 1, interpersonal relationships involve moral values, such as respect, beneficence and compassion.

  • 8 - Patient information and confidentiality

  • Kim Atkins, University of Tasmania, Sheryl de Lacey, Flinders University of South Australia, Rebecca Ripperger, Bonnie Britton, University of Tasmania
  • Book:
    Ethics and Law for Australian Nurses
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 171-199

  • Summary

    LEARNING OBJECTIVES

    In this chapter, you will:

  • ➔ Gain an understanding of the concepts of privacy and confidentiality, and be able to differentiate them

  • ➔ Gain an understanding of the nurse's legal and moral responsibilities in relation to privacy and confidentiality

  • ➔ Gain an understanding of the safe use of digital and social media to maintain patient confidentiality

  • ➔ Learn about the legal requirements of mandatory reporting

    • Ross was admitted through emergency services with chest pain, and was found to have had a myocardial infarction. He was admitted to the cardiac unit and placed on bed rest with cardiac monitoring. On admission, Kate, his nurse, gathered information from him about his condition and lifestyle to help plan his recovery and rehabilitation. When collecting this information, Ross told her that he was married and had three teenage sons. He added that he also had a long-term and loving relationship with Gill, and together they had a daughter who was seven years old. His wife did not know about his relationship with Gill or about his daughter, and he asked Kate to promise that this would not be disclosed to her. He said, ‘I know I can trust you with this information.’ He was most concerned that Kate arrange for Gill and his daughter to visit as well as notify his wife what had happened to him. Kate briefly described this unusual family situation in his notes, and suggested that discreet management of visitors was required as part of his nursing care. The next day, as she entered the unit, she noticed several nurses – one of them from the neighbouring renal unit – huddled around Ross’ case notes. They were whispering and giggling, apparently about her notation regarding his family situation.

    This chapter introduces the concepts of privacy and confidentiality in relation to the management of patient information, and outlines legal requirements for reporting harmful conduct of health professionals and others.

    The above case demonstrates how easily private and sensitive information recorded about a patient can result in a breach of confidentiality and unprofessional conduct. Kate appropriately recorded very personal information Ross had disclosed to her because she judged that it was relevant to his care. Yet other nurses perceived this to be a source of curiosity and gossip, and in sharing this with a nurse not involved in his care, had breached Ross’ confidentiality.

  • 2 - Understanding legal rights and obligations

  • Kim Atkins, University of Tasmania, Sheryl de Lacey, Flinders University of South Australia, Rebecca Ripperger, Bonnie Britton, University of Tasmania
  • Book:
    Ethics and Law for Australian Nurses
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 32-55

  • Summary

    LEARNING OBJECTIVES

    In this chapter, you will:

  • ➔ Gain an understanding of the social basis of rights

  • ➔ Develop an understanding of why laws should be morally justified

  • ➔ Gain an understanding of social contract theory and its limitations

  • ➔ Be introduced to the ‘capabilities approach’ as a moral basis for legal rights

    • In 1997, Ms Lorraine Smith was interviewed for a position as a director of the Red Meat Producer Corporation. At the time of her interview, she was seven months pregnant. During the interview, she was asked whether she was married. When she replied that she was married, she was then asked why she had lied and left this information off her application. Ms Smith replied that her marital status was irrelevant. One of the interviewers then stated that he had a problem employing young people with children.

    After the interview, Ms Smith complained about the questions to a member of the panel who was representing the recruitment agency. The representative concurred and likened the situation to the Dark Ages.

    Ms Smith lodged a complaint with the Human Rights and Equal Opportunity Commission (HREOC), claiming she had been treated with discrimination on the basis of her marital status because the questions were in violation of the Sex Discrimination Act 1984. HREOC found in her favour and awarded damages (Smith v Commonwealth 2000).

    HREOC determined that Ms Smith's rights had been violated, and that the Red Meat Producer Corporation had failed to live up to its legal obligations. In handing down his determination, the commissioner took the view that the interview panel did not adequately understand the legal rights of the applicant nor, consequently, how to act in accordance with those rights.

    A right is a justified entitlement to something – for example, the right to vote in democratic elections. The entitlement to that right is justified by the value Australian society places on the idea of the moral equality of citizens and selfdetermination. Rights also entitle us to demand that other people act (or refrain from acting) in certain ways. For example, the right to vote in democratic elections obliges other people to refrain from interfering with a person's free choice of candidates.

  • 7 - Culturally safe nursing practice

  • Kim Atkins, University of Tasmania, Sheryl de Lacey, Flinders University of South Australia, Rebecca Ripperger, Bonnie Britton, University of Tasmania
  • Book:
    Ethics and Law for Australian Nurses
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 154-170

  • Summary

    LEARNING OBJECTIVES

    In this chapter, you will

  • ➔ Consider the role of culture and diversity in nursing practice

  • ➔ Reflect on the vulnerability of Indigenous Australians and the need for attention to culture in the provision of their care

  • ➔ Gain an understanding of the concepts that underpin nursing practice that is culturally safe

  • ➔ Learn ways in which to provide culturally safe care

    • Li Wong, a 67-year-old woman of Chinese origin, presented with abdominal pain and nausea. She had a series of abdominal scans, which showed a growth in her liver; a biopsy confirmed that it was metastatic cancer. She was told that she had cancer and would need to have the growth removed and start chemotherapy. Mrs Wong was admitted to the surgical unit but on admission her family told the staff that complete truthfulness would severely overwhelm her, that their duty as a family was to protect her and that she would expect this. Following surgery, when it was known that the tumour was unable to be removed, Mrs Wong was told that her recovery would take a long time and would require many treatments.

    In this case, Li Wong's family requested that information about her illness and prognosis be withheld from her because she was vulnerable and would be severely affected by this information and the implications of it for her future well-being. To many nurses, the idea of concealing the truth from Li Wong would seem improper. Truthfulness underpins our practices of informed consent. In Australia, a patient is expected to give fully informed consent before treatment is provided, and should be provided with information about the risks and benefits of a procedure; otherwise, the nurse may be liable for assault (see Chapter 5). Truthfulness also forms the basis of clear communication and trust in the nurse–patient relationship. Concealing the true nature of Li Wong's illness may create a barrier to talking with her about advanced directives or about her feelings of grief, something Western nurses consider good practice. To many nurses, it would seem important that Li Wong have an opportunity to ‘put her affairs in order’, to address unfinished business and to prepare spiritually for death. However, in some cultures there is a common expectation that patients will not be told of certain diagnoses, and that the burden of knowledge and decision-making is delegated to family members.

  • 3 - Nursing and the legal system

  • Kim Atkins, University of Tasmania, Sheryl de Lacey, Flinders University of South Australia, Rebecca Ripperger, Bonnie Britton, University of Tasmania
  • Book:
    Ethics and Law for Australian Nurses
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 56-76

  • Summary

    LEARNING OBJECTIVES

    In this chapter, you will:

  • ➔ Distinguish between the two sources of law in Australia: statutory law and common law

  • ➔ Gain an understanding of the hierarchy of the courts in Australia's legal system

  • ➔ Gain an understanding of the difference between criminal and civil law and how each relates to nursing practice

  • ➔ Gain an understanding of the importance for nurses of gaining knowledge of the law and the legal system

    • The Australian legal system is complex. An illustration of its complexity can be seen in the protracted and controversial case of Dr Jayant Patel, a surgeon who had been working at the Bundaberg Base Hospital in Queensland. In 2010, following a commission of inquiry by the Queensland Government, and after being extradited from the United States, an action of criminal negligence was brought against Dr Patel under the Criminal Code 1899 (Qld). Although the legal action was initially successful, and Patel was found guilty on three counts of manslaughter and one count of grievous bodily harm, the case for the prosecution was not straightforward. Section 288 of the Criminal Code 1899 states that: ‘It is the duty of every person who … undertakes to administer surgical … treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act.’ Patel was found to have operated with appropriate skill and care. Jurors, therefore, were required to find that Patel's decision to operate showed ‘such a great falling short of the standard to have been expected of a surgeon, and showing such serious disregard for the patient's welfare … was so thoroughly reprehensible, involving such grave moral guilt, that it should be treated as a crime deserving of punishment’ (R v Patel [2010] QSC 233 [69]). Patel's convictions depended upon an interpretation of section 288 by Justice Byrne:

    Take a surgeon who performs a minor surgical procedure with consent. During the operation, in circumstances bespeaking criminal negligence, the surgeon lets the knife slip, wounding the patient. The surgeon will have breached the s 288 duty and be guilty of unlawful wounding.

  • 9 - ‘Trust me, I'm a nurse’

  • Kim Atkins, University of Tasmania, Sheryl de Lacey, Flinders University of South Australia, Rebecca Ripperger, Bonnie Britton, University of Tasmania
  • Book:
    Ethics and Law for Australian Nurses
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 200-220

  • Summary

    LEARNING OBJECTIVES

    In this chapter, you will:

  • ➔ Develop your understanding of how, through the therapeutic relationship, the nurse can empower the patient to make decisions about treatment that the patient really wants

  • ➔ Gain an understanding of the nature and role of trust in the nurse– patient relationship

  • ➔ Develop your understanding of the scope of a patient's right to negotiate treatment, including alternative therapies

    • Lena is a patient in the medical ward of a hospital. One day she tells her nurse that she is feeling ‘a bit out of sorts’ because her best friend has left on her honeymoon and won't be visiting her. At handover, the nurse reports that Lena is feeling depressed. The nurse on the incoming shift then writes in the notes that Lena is depressed. The resident doctor reads in the notes that Lena is depressed and informs the specialist doctor the next day, suggesting that he prescribe a medication. In the meantime, he arranges for a social worker to talk with Lena about possible problems at home.

    Lena is outraged. She marches to the nurse's station and demands to see her file. She demands to know who has decided she is depressed and who has sent a social worker after her, then insists on seeing the resident doctor. The nurse on duty is not experienced in dealing with an angry patient, and when she calls the doctor she tells him that Lena is ‘out of control’.

    This chapter will further explore the moral and legal aspects of the nurse– patient relationship, with special attention to the role of trust. Lena's situation demonstrates how a patient can be disempowered and rendered increasingly vulnerable through careless use of professional power. Lena's sadness at being parted from her friend (a normal reaction) has been turned into a medical condition (or ‘medicalised’), which is then recorded in her file as if it is a fact about her. Then this purported medical condition is used as a reason to pry into Lena's private life – and all without any consultation with Lena herself. When Lena expresses quite justifiable outrage, she is further cast as a problem patient, and her anger is regarded as part of her emotional instability.

  • 12 - Ethics of aged care: autonomy under threat. The nurse as capacity builder

  • Kim Atkins, University of Tasmania, Sheryl de Lacey, Flinders University of South Australia, Rebecca Ripperger, Bonnie Britton, University of Tasmania
  • Book:
    Ethics and Law for Australian Nurses
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 268-290

  • Summary

    LEARNING OBJECTIVES

    In this chapter, you will:

  • ➔ Gain an understanding of the challenges posed by ageing to a person's autonomy

  • ➔ Develop an understanding of how issues of autonomy are relevant at the level of everyday interactions

  • ➔ Learn techniques that can be employed by the nurse to provide support and promote autonomy in aged persons

    • In November 2012, two artists – a theatre-maker and a puppeteer – resided for seven days in a dementia-specific unit of an aged-care facility in Tasmania. In that time, they engaged closely with the 23 residents, their families and the staff to create an in-house experience that became a site of social interaction, conversation and inclusion. The installation they created involved building a small shack-like structure. A range of materials and fabrics were used to cover the frame. The little shack housed a display of changing treasures that could be viewed through the windows: flowers potted in gilded tea cups, decorative quilts, dolls, hanging lanterns, puppets, coloured sea horses, an old suitcase, a treasure chest. The communal room in which the shack stood was decorated with spraypainted life-sized paper figures. The installation developed out of the relationships formed in the aged-care facility, and was built around themes drawn from the residents’ lives – past, present and future. The doors of the shack opened out to create a performance space and each resident had the opportunity to experience a performance designed specifically for them. The residents determined for themselves their own levels of participation – whether it was to simply witness the construction, to tell their stories providing inspiration, to make suggestions about what materials could be used or to assist with the construction itself, and ultimately to experience their own unique performance.

    An evaluation of the project showed an improvement in residents’ levels of participation and social engagement generally as well as improvement in their appetites and behaviour. Families enjoyed watching their loved one's participation and found a new focal point for conversation and connection to them. Staff found stimulus for interaction with the residents about their lives (Creature Tales Tasmania 2012).

  • 5 - Consent

  • Kim Atkins, University of Tasmania, Sheryl de Lacey, Flinders University of South Australia, Rebecca Ripperger, Bonnie Britton, University of Tasmania
  • Book:
    Ethics and Law for Australian Nurses
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 104-128

  • Summary

    LEARNING OBJECTIVES

    In this chapter, you will:

  • ➔ Gain an understanding of the concept of consent and the legal framework for consent

  • ➔ Gain an understanding of the legal constraints on consent

  • ➔ Learn about the role of guardianship

  • ➔ Develop your understanding of the nurse's role in advocating for the patient's interests

    • Ping Le is admitted to the surgical ward for an operation to relieve severe pain in her right hand arising from carpal tunnel syndrome. Ping Le will be asked to sign a consent form for the operation. As part of preparing her to give consent, you ask her whether the surgeon has explained the operation and its risks. Ping Le replies, ‘The surgeon can just give me the form to sign. You can do what you like as long as it makes the pain stop.’

    The focus of this chapter is consent. It may seem surprising that Ping Le would let a surgeon operate on her without wanting to know exactly what is going to happen to her, but some people do occasionally respond in this way – for example, when they cannot tolerate a painful condition any more. But is this acceptable from a legal point of view? What if Ping Le were seriously mentally ill and did not understand that surgery was being proposed? Who could consent for her in that case? This chapter addresses the legal requirements of consent for adults and children, and looks at the place of guardianship and advocacy in decision-making. It also considers the situation of people who are not mentally competent who may require emergency care or who need to be restrained against their will.

    The requirements for consent

    The fiduciary nature of the nurse–patient relationship requires that the nurse respect patients’ authority to make decisions concerning their lives. In a practical sense, that means that the nurse is required to do whatever is reasonably possible to facilitate the patient's autonomy. Recall also that, from the perspective of the ‘capabilities approach’ discussed briefly in Chapter 2, respecting the patient's autonomy means the nurse doing what they can to ensure the patient has the necessary capacities to make thoughtful, reasoned decisions that are in accord with the patient's values, commitments, aspirations and personal circumstances. This is the philosophical and moral framework that informs legal requirements of valid consent to treatment.

  • Introduction

  • Kim Atkins, University of Tasmania, Sheryl de Lacey, Flinders University of South Australia, Rebecca Ripperger, Bonnie Britton, University of Tasmania
  • Book:
    Ethics and Law for Australian Nurses
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 1-7

  • Summary

    This book has been written specifically for nurses training and practising within Australia, to assist and encourage them to develop a strong and well-defined sense of professional and moral identity. It endeavours to provide an integrated, practical framework for understanding the ethical and legal dimensions of nursing practice in Australia by referencing Australian law and reflecting the Australian clinical context and cultural norms.

    This book refers to ‘patients’ rather than ‘clients’. The question of which term is most appropriate is not easily resolved – if it can be at all – because there are many ways to interpret both terms. Consequently, we have made the decision to use the term ‘patients’ because it best approximates our use of the concept of vulnerability. We do not regard patients as people who are either in a contract with the nurse or merely passive and dependent on the nurse; rather, patients are people who are in a relationship of power with the nurse because they are in specific situations of need. Under Australian law, this is considered a fiduciary relationship – that is, one in which the nurse is recognised as having superior knowledge and therefore more power than the patient, but the patient's authority in decision-making carries more legal and moral force. To represent patients as people who have a merely contractual or dependency relationship with a nurse would be to misrepresent their situation and to obscure the ethical and moral implications of the context of care. A patient's need and vulnerability in the context of a nurse's power constitute the source of the nurse's moral and legal obligations. Therefore, the nurse–patient relationship occupies centre stage throughout this book.

    This book takes a ‘relational’ approach – that is, it emphasises the centrality of relationships to nursing practice at both the theoretical and practical levels. For example, at a theoretical level the book explains personhood as a set of capacities that develop from birth and are sustained throughout life through relationships with other people. It traces the moral basis of law to our need as human beings to live together in societies, and the accompanying need to be protected from harm produced through the activities of people living in close proximity to one another. It also describes how, at a personal level, particular relationships can facilitate or erode an individual's sense of self and self-respect.

  • 1 - Understanding the human person

  • Kim Atkins, University of Tasmania, Sheryl de Lacey, Flinders University of South Australia, Rebecca Ripperger, Bonnie Britton, University of Tasmania
  • Book:
    Ethics and Law for Australian Nurses
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 8-31

  • Summary

    LEARNING OBJECTIVES

    In this chapter, you will:

  • ➔ Develop your appreciation of the complexity of the concept of ‘person’

  • ➔ Develop your understanding of ‘personhood’ as a relation between biological, interpersonal and social aspects of a human being

  • ➔ Develop an understanding of human vulnerability, and how this makes possible the capacity to care for each other

  • ➔ Gain a sense of the ways in which your beliefs about yourself affect your capacity to care for yourself and others

    • In 2004, the Chief Justice of the Family Court of Australia, Alistair Nicholson, made a determination that a 13-year-old child (known as Alex) could proceed with medical treatment that would permanently change that child's gender from female to male. Justice Nicholson noted that Alex had the physical appearance of a girl and normal female chromosomes, but had a ‘longstanding, unwavering and present identification as male’ (Re Alex 2004, para. 80; see also Atkins 2005).

    In coming to a coherent determination of what was in Alex's best interests, Justice Nicholson gave due consideration to Alex's personal and family history; Alex's subjective perception of his situation; the nature of Alex's relationships with family and friends; and the relevant scientific and medical information pertaining to Alex's mental, physical and sexual health.

    Experiences such as Alex's raise questions about the nature of human identity:

  • ➔ What is the connection between the physical body and a person's psychological outlook?

  • ➔ What part do early life experiences play in shaping a personality?

  • ➔ What part do social influences play in shaping a personality?

  • ➔ Is there an essential defining quality that all persons share?

  • ➔ Is there a proper or an improper way to be a male or female?

  • ➔ Where do we get our ideas about persons and gender, as well as what is proper or improper?

    • As a nurse, you will be called upon to support, care for and protect people who are vastly different from yourself. How you respond to the diversity of human beings will be a measure of your own humanity as well as your professionalism. Certainly, caring does not come as easily to some nurses as it does to others. After all, it is not always pleasant being around incapacitated, sick or grieving people.

  • 6 - Duty of care and professional negligence

  • Kim Atkins, University of Tasmania, Sheryl de Lacey, Flinders University of South Australia, Rebecca Ripperger, Bonnie Britton, University of Tasmania
  • Book:
    Ethics and Law for Australian Nurses
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 129-153

  • Summary

    LEARNING OBJECTIVES

    In this chapter, you will:

  • ➔ Develop an understanding of the concepts of ‘duty of care’ and ‘standard of care’

  • ➔ Learn how a nurse's ‘scope of practice’ is determined

  • ➔ Learn how a nurse's actions or omissions may be determined to be negligent

  • ➔ Learn how to avoid acting negligently

  • ➔ Gain an understanding of vicarious liability and professional indemnity

    • Two ambulance officers attended a collapsed, unconscious person. Following ambulance protocol, a dose of intravenous adrenaline was administered. The person remained unresponsive. A second dose of adrenaline was administered, as per the ambulance protocol. Consequently, the person suffered a cerebral bleed as a result of high blood pressure induced by the adrenaline.

    The ambulance officer was initially found to be negligent, but the finding was overturned on appeal. The appeal judge determined that, by following ambulance protocol, the ambulance officer did provide a reasonable standard of care, and that the harm suffered by the person was not the result of a breach of duty of care (Eburn 2007).

    Duty of care

    Chapter 4 noted that nurses have a duty of care towards their patients. Duty of care refers to the legal obligation on a professional to exercise reasonable care and skill in the provision of professional treatment:

    [A] person comes under a duty of care in relation to the provision of advice or information if he carries on a business or profession and in the course of it provides advice or information of a kind which calls for skill and competence or otherwise professes to possess skill and competence and he provides advice or information when he knows or ought to know that the recipient intends to act or rely on it.

    (Mason J in Shaddock & Associates v Parramatta City Council 1981: 248–9)

    The claim that health professionals have a duty of care towards their patients has been established in common law. Perhaps the most significant case in this respect comes from English common law, namely the 1932 House of Lords judgment of Donoghue v Stevenson. In that case, May Donoghue, a customer in a café, was served a drink that was found to have a decomposing snail in it. Shortly afterwards, she developed gastroenteritis. Mrs Donoghue brought a successful action for negligence against the café owner, Stevenson.

  • 10 - Witnessing and making mistakes

  • Kim Atkins, University of Tasmania, Sheryl de Lacey, Flinders University of South Australia, Rebecca Ripperger, Bonnie Britton, University of Tasmania
  • Book:
    Ethics and Law for Australian Nurses
    Published online:
    21 June 2018
    Print publication:
    01 September 2017, pp 221-248

  • Summary

    LEARNING OBJECTIVES

    In this chapter, you will:

  • ➔ Gain an understanding of the nature of professional self-respect and its connection to trustworthiness

  • ➔ Gain an understanding of the nature of trust and its role in the clinical relationship

  • ➔ Gain an understanding of the factors that lead to clinical errors and incidents

  • ➔ Gain an understanding of some factors that influence nurses’ decisions about reporting errors

  • ➔ Gain an understanding of how you can build integrity through ‘Giving Voice to Values’

  • ➔ Learn about open disclosure policy and processes

    • Apari had been caring for a diabetic man, Jack, whose blood glucose levels had been difficult to stabilise. One day they would be high, the next day they would be low. By chance, one day Apari saw that a new nurse, Louise, was using the glucometer incorrectly to test Jack's blood glucose. Apari checked Jack's notes and realised that Louise had been recording incorrect blood glucose levels for several days.

    Just like everyone else, nurses sometimes make mistakes that can result in harm to others. The Nursing and Midwifery Board of Australia (NMBA) Code of Professional Conduct for Nurses in Australia (NMBA 2013d) makes a number of statements regarding safe conduct – for example:

    Conduct Statement 1: Nurses practise in a safe and competent manner.

    Conduct Statement 2: Nurses practise in accordance with the standards of the profession and broader health system.

    Conduct Statement 3: Nurses practise and conduct themselves in accordance with laws relevant to the profession and practice of nursing.

    The NMBA Code of Ethics for Nurses in Australia (NMBA 2013b) also refers to safe conduct:

    Value Statement 1: Nurses value quality nursing care for all people.

    Value Statement 6: Nurses value a culture of safety in nursing and health care.

    These statements reflect the expectation that nurses are aware of and committed to industry-wide standards of safety and quality in their practice. Consequently, one could infer that nurses have a moral obligation to deal with clinical errors and incidents in an open, honest and constructive fashion. For example, Value Statement 1 further states:

    Valuing quality nursing care involves nurses accepting accountability for the standard of nursing care they provide, helping to raise the standard of nursing care, and taking action when they consider, on reasonable grounds, the standard of nursing care to be unacceptable.

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