- Give a definition for each of the following legal and professional issues and discuss how each one applies to this Case Study:
- Consent, restraint, assault and battery
- Duty of care, negligence and vicarious liability
- Scope of practice (the legal and professional boundaries imposed upon you as a nurse)
- Advocacy (the nurse’s role as an advocate for the client)
- Open disclosure
- The Coroner
The principles of consent are based on common law and they acknowledge the right of every adult person who is of sound mind to choose what shall be done with his or her own body. Consent is agreement from the client for the worker to provide a particular kind of service. Consent can be given verbally, in written form, or may be implied.
Types of consent
- Verbal – the client tells you in words that they want a service or agree to some intervention.
- Written – the client signs forms requesting or agreeing to the service or intervention.
- Implied – the client implies in some way, for example nods their head, when you ask them if they want you to do something and assists you in the task. For example, you ask a client if they want a shower and they nod their head and start to take their clothes off.
In the case study opposite, Mary has not given verbal consent but has given implied consent because she has held out her elbow to start the procedure.
There are times when consent may not have been granted, for example when someone has had a major accident and immediate care is required to save their life. In this situation the individual is unable to give consent; however, lifesaving care is required and the assumption has to be made that the person would consent to having the emergency care.
As an aged care worker, you have a legal and ethical obligation to involve your client in decisions about the services they receive and gain their consent before providing any type of care. All people respond better when their wishes are taken into account.
The following elements constitute a valid consent.
- Consent must be given voluntarily.
- Consent must be informed – the person must be aware of what they are consenting to and the risks involved.
- Consent must refer specifically to the actions that will be performed.
- The person must have the legal capacity to give consent – they must be mentally competent and over the age of 18 years (where the person does not have the legal capacity to give consent, it may be given by a legal guardian).
The application of restraint in any health care environment is an imposition on a person’s rights and dignity. Restraints of any kind should only be used as a measure of last resort and for the purpose of promoting and maintaining a person’s health and well being, or in the short term, the health and well being of others.
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The professional and legal responsibilities associated with the use of restraint have significant implications for health professionals and organisations. With the exception of emergency situations, medical practitioners are responsible for all clinical decisions relating to the use of restraint, while nurses and other caregivers are responsible for the safe application and management of restraint in clinical settings.
Restraint includes any action, word or deed that is used for the purpose or intent of restricting the free movement or decision-making abilities of another person.
Purpose of Restraint
The use of restraint should be viewed as a temporary solution to challenging behaviour or circumstantial factors, and its use should only be considered when all alternative options to address the issue have been explored and deemed inappropriate.
Restraint may only legitimately be used to address the risks a person poses to him/herself, to others or to property. Restraint should never be used for the convenience of staff or to overcome a lack of adequate supervision. Nor should restraint ever be used to punish or negatively reinforce problem behaviours.
Methods of Restraint
Various types of restraint are used for altering a person’s thoughts, behaviour or physical status. These may be classified as physical, environmental, chemical or emotional restraint. Examples of the most common methods are provided below.
Physical Restraints: Physical restraints include any devices directly applied to a person to restrict movement. Vests, mittens, wrist or ankle straps and zip beds are some examples of physical restraints.
Environmental: A number of environmental or mechanical devices may be used to restrict movement. These include bed-rails, recliner or tub chairs, locked doors or locked facilities.
Chemical Restraint: Chemical restraint involves the use of medications to control or modify an individual’s thoughts or behaviour that may not be related to medical treatment.
Emotional Restraint: Verbal, non-verbal and physical intimidation constitutes emotional restraint. Such methods of restraint are used to alter or restrict a person’s choice of behaviour or to actively encourage or discourage particular behaviour.
Assault is a wrongful, intentional, statement or action performed by one person that causes another person immediate and actual fear, or reasonable apprehension, of being touched against his or her will in an injurious or offensive manner. The action can be an attempt or a threat to inflict injury or harm. It can be any action that generates apprehension or fear in another. Words and/or gestures could be sufficient depending on the circumstances.
No actual physical injury or contact need occur.
Assault is any credible, reasonably believable threat. It is threatened battery.
If there is any actual contact or touching, battery has been committed.
An essential element in assault is the apprehension of being touched, and that is the only thing needed to prove a claim for assault. There must be an awareness, an anticipation, a knowledge, and a fear of immediate physical harm on the part of the victim. An unconscious or comatose patient could not be a victim of assault.
Battery is the intentional physical contact with another person in an injurious or offensive manner without that person’s explicit or implied consent.
It is any act of physical contact that is unapproved and unwarranted. It is the actual performance of an act of contact or personal physical touching that is only threatened in assault. The victim need not have any fear of immediate harm for the act to be considered battery.
Battery is the most common allegation involving nurses and intentional torts. There are several aspects of battery that the nurse must be aware of:
- First, if the requisite elements of battery are otherwise present, a single touch no matter how brief or how light constitutes battery.
- Second, no actual injury need occur. The patient does not have to suffer physical harm or experience pain of any kind.
- Third, there need be no fear, apprehension, or awareness of immediate harm on the part of the patient. An unconscious person can be the victim of battery.
- Fourth, the unpermitted touching of an individual’s personal effects or of any such objects on that person or in his or her hand constitutes battery. Under the law, any personal item that is connected to an individual in any way is treated as an extension of that individual.
- Fifth, the contact required can be direct or indirect. The victim does not have to be touched personally. If a patient is struck, even inadvertently, by an object in the hands of a nurse, or by one that is set in motion by any action of a nurse, while in the act of a battery, that nurse may be liable.
Treatment without consent is the most frequently alleged act of battery involving nurses. If any health care provider conducts physical examinations, performs diagnostic procedures, or initiates treatments without first obtaining the consent of the patient (when this is necessary, appropriate, and possible) the health care provider can be liable for charges of battery.
For a plaintiff to prove the charge, he or she must provide evidence that he or she did not give consent for the treatment or procedure carried out by the defendant or that the defendant’s conduct went beyond the limits defined by the consent that the plaintiff had given. Or it must be shown that he or she had withdrawn consent prior to the treatment or procedure that was then carried out with disregard of that withdrawal.
Often an allegation of assault and battery will be presented rather than one of negligence. When such a charge constitutes the basis of a lawsuit, negligence need not be proven. The very nature of – the action of – assault and battery provides the basis for a claim. Expert witnesses are not required in such proceedings. State criminal laws and tort laws provide for legal action in cases of assault and battery.
Duty of care
Duty of care relates to the tort of negligence which recognises that people must take proper care to avoid harm to others. Duty of care refers to the duty (obligation) of all aged care and health care workers to take care when they work with clients.
It is your legal responsibility to take reasonable care and ensure that you provide a proper standard of service to all clients with consideration to their medical, ethical, social and religious needs.
Duty of care is about safety. It means that you must think ahead about possible risks or dangers to clients and make sure you are following correct agency procedures. If you breach your duty of care (meaning if you do not carry out your role with care) you could be charged with negligence and would have to compensate the client for any damages they suffered as a result of your actions or inaction.
What is a breach of duty of care?
Aged care and health care workers can be in breach of their duty of care when:
- care is inappropriately or poorly provided
- the client is injured physically or emotionally
- medical complications are not properly managed
- conditions are misdiagnosed due to carelessness
- risks involved in treatment are not explained or managed.
You may be failing your duty of care if you do not:
- maintain client confidentiality
- listen and respond to complaints and needs
- apply appropriate occupational health and safety procedures
- follow the policies and procedures of the organisation
- follow the standards, ethics or generally accepted principles of your profession or community
- report and record information
- follow the care plan.
Negligence is the failure to do something that a reasonable person would do under the same circumstances, or doing something that a reasonable person would not do under the same set of circumstances.
In the context of aged care, the term ‘reasonable person’ means how a competent aged care worker would act. A failure of duty of care towards your client may lead to a finding of negligence. Only a court can decide if someone has been negligent.
Negligence can refer to:
- failure to undertake tasks or procedures that you should have completed
- actions – things you did that you should not have done because they involved unacceptable risks and caused harm.
There are four essential elements that constitute negligence, often referred to as the 4 Ds:
- duty of care – you had an obligation to provide care of a particular standard to a client
- dereliction of duty – you acted carelessly and without common-sense, breaching the normal standard of care that society would have expected
- damage – the client experienced actual harm or injury
- direct effect – the damage was a direct result of your actions or omissions.
The key points to remember are:
- it is not necessary to show that the worker Meant to cause harm – the fact that an aged care worker acted with the best of intentions does not prevent the worker’s actions from being negligent
- because it is a matter of common law, the case will be heard in a civil court; many cases however are settled out of court
- generally the employer is held responsible for the negligence of staff members. This is called vicarious liability. While it does not exclude individuals from personal liability, it does acknowledge that employers have some responsibility for the actions of their workers.
Here are two common situations where harm could easily have been prevented by exercising due care:
- the client falls because the worker does not follow safe lifting practices
- the client is burnt because old or faulty equipment is used.
Briefly, vicarious liability refers to the liability owed by an employer to a claim arising as a result of his employee’s negligence or otherwise at work. In other words, the liability was originally due to the employee’s fault and, because it was incurred in the course of employment, the employer becomes jointly and severally liable to the claimant. ‘Jointly’ is easily understood from its plain English meaning. ‘Severally’ means that the claimant can actually make his claim against either of or both defendants, and he will be able to claim the total of his awarded damages from either even though the total of his claims can only be up to the amount of the awarded damages.
A hospital is therefore very concerned with the liabilities incurred by its employees. Awards for claims against doctors’ negligence are obviously of great amounts and therefore the hospital is often sued instead or additionally as a joint defendant.
This is exactly the reason why a modern hospital should be diligent in its risk management measures. A very major expenditure item in the budget account is payroll. No less, however, are payments in settlement and damages unless risks are well managed.
Scope of practice
The scope of practice of a nurse is that which they are educated, competent and permitted by law to perform. The individual scope of practice of a nurse is influenced by the:
- Place of employment
- Health needs of people
- Level of educational and professional competence of the nurse
What the nurse feels comfortable with performing
- Organisation’s policy and procedure requirements.
Supervision of Enrolled Nurses (EN) by Registered Nurses (RN) can be direct or indirect. Supervision is in the form of an accessible RN for support and guidance.
- Direct supervision: the supervisor or RN is present, observes, works with, guides and directs the person who is being supervised.
- Indirect supervision: the supervisor (RN) works in the same organisation as the nurse being supervised, but does not constantly observe their activities. The supervisor must be available for reasonable access. Reasonable access will depend on the context, the needs of the person receiving care and the needs of the person being supervised.
It is important to remember, however, that the EN retains responsibility for their own actions and remains accountable for providing delegated nursing care at all times is influenced by the:
- Settings in which they practise
- Health needs of people
- Level of competence and confidence of the nurse
- Service provider’s policy requirements.
Supervision of Enrolled Nurses by Registered Nurses can be direct or indirect. Supervision is defined as access, in all contexts of care, at all times to a named and accessible RN for support and guidance.
- Direct supervision: the supervisor (RN) is actually in attendance, observing, working with, guiding and directing the nurse being supervised.
- Indirect supervision: the supervisor (RN) works at the same facility as the supervised nurse, but does not constantly oversee their actions. The supervisor reasonably accessible at all times. Reasonable access will be governed by the facility policies, the requirements of the person receiving care and the needs of the nurse.
At all times, however, the EN is responsible for their own actions and remains answerable for the care they provide.
Advocacy is when you speak up for someone else to change a situation or solve a problem. Advocacy is needed when someone’s rights are being overlooked or abused and that person does not feel capable of standing up for themselves without support. You may sometimes need to advocate on behalf of your clients.
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Advocacy can involve an informal arrangement where a friend or relative acts as the advocate and speaks up for another person. It can also be a more formal arrangement, where the advocate is a professional person who intervenes on behalf of the client to protect their rights. The advocate’s role is to act as a spokesperson in upholding the client’s rights, to act as a negotiator, to participate in meetings, to monitor services to the client, or to act as an adviser, friend and provider of information.
There are many reasons why clients need someone else to speak up for them. These may include:
- having no power in the situation or feeling helpless
- poor health
- being dependent
- having a disability
- a lack of knowledge about how the system works
- not knowing their rights.
Documentation is considered as a vital communication tool among healthcare professionals. Nursing documentation is an integral part of clinical documentation and is a fundamental nursing responsibility. Good documentation ensures continuity of care, furnishes legal evidence of the process of care and supports evaluation of patient care. Nurses must balance clinical documentation with respect to legal imperatives. Accurate and complete documentation of client’s symptoms and observations is critical to proper treatment and management. Entries documented on a client’s clinical record are a legal and permanent document.
Nursing documentation is any written or electronically generated information that describes the care or service provided to a particular client or group of clients. Through documentation, nurses communicate to other healthcare professionals their observations, decisions, actions and outcomes of care. Documentation is an accurate account of what occurred and when it occurred.
In the process of documentation, the nurse needs to consider the following:
- Enforce local policies and procedures or protocols of documentation at practice setting and that nurse follows these at all times.
- Ensure clear, concise, accurate, complete, objective, legible and timely documentation to fulfil both clinical and legal imperatives.
- Exercise professional judgment and apply knowledge and skills in the given situation.
Responsibilities of the nurse
- The nurse understands his/her accountability for documenting on the clinical record the care he/she personally provides to the clients.
- The nurse documents the care process including information or concerns communicated to another health care provider.
- The nurse documents all relevant information about clients in chronological order with date and time.
- The nurse carries out comprehensive, in-depth and frequent documentation when clients are acutely ill, high risk or have complex health problems.
- The nurse documents timely the care he/she provides.
- The nurse corrects any documentation error in a timely and forthright manner.
- The nurse remarks any late entry, if indicated, with both date and time of the late entry and of the actual event.
- The nurse indicates his/her accountability by adding his/her signature and title as approved by his/her organization to each entry and correction he/she makes on the clinical record.
- The nurse safeguards the privacy, security and confidentiality of clinical record by appropriate storage and custody.
- The nurse updates himself/herself with contemporary documentation knowledge.
Open disclosure is providing an open, consistent approach to communicating with patients after an adverse incident. This includes expressing regret for what has transpired, keeping the patient informed of what is occurring, and providing feedback on investigations, including the measures taken to prevent an event from happening again. It is also about providing information that will ensure improved patient safety. The Australian open disclosure standard is not mandatory, but has been established with active involvement by accreditation agencies and professional bodies and is likely to become the recognized standard of care provided by Australian healthcare staff and facilities.
Open disclosure is in accord with evolving ethical practices in health which support greater openness with patients and increased involvement of patients in their own care. Improving healthcare safety begins with ensuring that communication is open and honest, and immediate. This includes communication between healthcare professionals and patients and their carers. It also includes communication between nurses, doctors, healthcare administrators, as well as other staff. Nursing facilities must create an environment which encourages the reporting and identification of adverse events so that opportunities for learning can be identified and acted on. Also. there is a need to move away front blaming individuals to focusing on establishing systems of organisational responsibility.
Disclosure is required where a patient has suffered some harm (physical or psychological) as a result of treatment. This may be a recognised complication or be a result of human or systems error. As soon as an event is noticed, you should ensure patient safety, perform any immediate care interventions required and inform your manager. There is no conclusive evidence that open disclosure increases or decreases litigationt; however, open communication following an adverse event will:
- improve patient safety through improved systems learning
- increase trust between patients and clinicians
- assist patients in becoming more active participants in their care.
If the nurse notices harm caused under the care of another medical professional, they should always speak first to their nurse manager and the senior clinician of the team involved. If these members of staff are unwilling to initiate the disclosure process refer the matter to the person responsible for clinical risk or medical administration. Fear of implicating friends, colleagues and members of the team is a significant barrier to open disclosure. However, there is greater chance or causing problems by not disclosing that something has gone wrong. To do so could be involving friends in deceitful or fraudulent behaviour by ‘covering up’.
A coroner is an investigator of sudden, unexpected, unexplained, violent or suspicious deaths.
In Australia they are judicial officers and ‘inquisitors’. That is, they conduct inquiries into deaths that are reportable to them under legislation. Because of this, their roles are very much more active than those of most judicial officers.
The primary function of a coroner is that of fact-finder. Because coronial proceedings are inquiries, not trial, coroners are not bound by the rules of evidence or procedure. Like other investigators, coroners may inform themselves in any way that is relevant and appropriate prvided that they are fair to any party with an interest in the outcome of the investigation.
Coroners have extensive powers to conduct investigations, to direct and control those inquiries, and to make findings. They may order medical medical examinations, request police officers to conduct enquiries, require production of documents, request expert reports, issue orders enabling police officers to search premises for evidence relating to deaths, subpoena witnesses and hold public court hearings.
Coronial work is multi-disciplinary. A coroner is not a scientist or a detective but manages a team of investigators and other experts.
In most Australasian juristictions, coronial powers are exercised by specialist coroners with the status of a judge or magistrate.
Coronial systems have a number of purposes:
- To explain how and why sudden deaths have come about.
- To allay suspicions of fears.
- To hold public agencies, such as police, prisons and health services to account for deaths of people who die in the state’s custody or care.
- To improve our systems of public health and safety with a view to preventing future deaths.
- To conduct investigations in public when appropriate.
- To demonstrate the value democratic societies place on individual human lives.
- To reinforce the rule of law in democratic societies.
The coronial process
The coronial process generally follows a recognisable pattern in all jurisdictions:
- A person dies suddenly or unexpectedly or is missing and suspected of having died.
- The death is observed or discovered and notified to police or to a doctor.
- If the death appears to be ‘reportable’ under the Coroners Act, the police officer or doctor will organise for the body to be transported to the mortuary.
- A report is made to the Coroners Court or the local coroner by the police. If the person has died in hospital, an additional report is usually made.
- The coroner and the local forensic pathologist discuss the case and how the cause of death can be established.
- The coroner then makes a decision and issues directions to the forensic pathologists (and sometimes to others such as forensic dentists, anthropologists, etc) to conduct post mortem medical investigations.
- If the next of kin object to an autopsy or other post mortem medical investigations, the coroner will make a decision on whether to uphold the objection or not.
- The coroner will also consider whether to request a police investigation or some other form of investigation (if that is not already underway).
- The coroner may also be involved in framing the issues for investigation and planning any operations or further investigations that may be required.
- When the investigations are complete, a brief is given to the coroner. The coroner then decides whether or not to conduct an inquest.
- If an inquest is to be conducted, the coroner will usually brief a `Counsel Assisting’ who will have responsibility for organising the inquest.
- Working with Counsel Assisting, the coroner identifies the issues to be investigated and the witnesses to be called.
- The coroner also identifies any ‘persons of interest’ and any persons whose interests may be affected by the inquest. They will be notified and usually provided with a copy of the coroner’s brief.
- The inquest is then prepared. This may include holding directions hearings, issuing subpoenae, taking views and conferences with Counsel Assisting.
- The inquest is conducted.
- Findings are made (if possible) as to whether a person has died or not or, if a death has taken place, as to the identity of the deceased, the date and place of death, and the physiological cause of death and the circumstances in which the death took place.
- The coroner may also make recommendations concerning lessons learned in relation to public health or safety or in relation to disciplinary action that might be taken concerning persons involved in the death of the deceased person.
Deaths that may have been caused by or contributed to by neglect or inadequate or delayed efforts by the person’s carer to obtain treatment should be reported and arguably may be regarded as unnatural under the deprivation category.
Deaths should still be regarded as unnatural even when the causative event occurred a considerable time before the death. In those cases there is frequently some complication that actually causes the death. If it is attributable to the initial injury the death can be said to be unnatural and therefore reportable.
Violent and unnatural deaths
Violent deaths are caused by trauma – accidents, suicide or homicide. The death need not necessarily be immediate. Sometimes people die of complications that originated with a traumatic injury.
Other forms of unnatural deaths frequently seen by coroners are:
- overdoses – accidental or intentional – with drugs, alcohol or poisons;
- deaths due to physical factors such as exposure (hypothermia), electrocution, overheating, smoke inhalation, burns; and
- deaths due to deprivation of the necessaries of life (air, food or water) asphyxia, drowning, dehydration, starvation. Sometimes these are due to accidents, sometimes intentional (suicide, assisted suicide, homicide), sometimes due to negligence.
Elderly people in care
Life expectancy has increased and will continue to increase due to advances in health care. Paradoxically many elderly people often live longer now but are unhealthy for longer periods than in previous generations. The elderly, particularly those suffering chronic illness, are highly vulnerable to neglect and abuse. ‘Elder abuse’ is thought to be under-reported and is a growing concern. This is especially so because it is often difficult to distinguish between a natural process of deterioration and the effects of neglect or abuse.
The human rights of the elderly are just as important as those of other vulnerable populations in our societies. Coroners have a special responsibility for them.
Disabled people in care
Disabled people are also frequently vulnerable to neglect or outright abuse. Disabled people are not an homogenous group but have varied abilities and needs and vulnerabilities. There is considerable evidence that disabled people are subjected to sexual and physical abuse or neglect at higher rates than members of the general community.”
Depending on the circumstances, factors such as low mobility, limited communication skills, high dependence on non-family members for personal care, and the use of shared accommodation services may provide the environment or opportunity in which neglect, abuse and outright exploitation may occur. For these reasons, the deaths of disabled people are reported to coroners.
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