Nurse Clinics 2016 Annual

Conference

Hallam Conference Centre, London

Roz Hooper Principal Legal Officer

Legal Services

Royal College of Nursing

Nurse Clinics: To cover…

Accountability:

employment/regulation/clinical

negligence

Consent and capacity

Case studies

Overlapping regimes

Employment contract may restrict

activities (disciplinaries and dismissals)

Regulator (NMC) stipulates standards

(restrictions on the register or removal)

Tort law: Clinical negligence/Personal

Injury: Injured patients can seek

compensation

Who owes a duty of care? • Is it reasonably foreseeable that someone could

be affected by your actions?

• Relevance of contract of employment in defining

scope of your duty of care

• Duty of care to colleagues and non-patients?

• Can more than one ‘person’ be in breach of a

duty to care to the same patient in relation to the

same incident?

Delegation

Sufficiently expert (how do you know?)

Sufficiently supervised

Professional (or clinical) negligence

• Duty of care

• Breach

• Damage

Standard of care

Ordinarily competent practitioner in that

particular field (Bolam)

• Common practice

• Innovative treatment

• Keeping up to date

• Specialist

• Inexperience

• Documentation

Summary

• The law generally doesn’t prescribe who must

undertake the majority of health care procedures

• It is concerned with the appropriate standard of care,

as reflected in common practice, i.e. that which is

acceptable to a responsible and relevant body of

professional nursing/medical etc opinion

• If you have the knowledge, skills and experience to

perform that task or role to the requisite standard,

then there should be nothing to stop you doing so

Relevance of indemnity arrangements?

• What is vicarious liability?

• Changes to the RCN indemnity scheme: 1 July 14

• Requirement for Professional Indemnity Insurance (PII) cover at NMC: July 2014

Elements of a valid consent

(common law)

• Legally competent

• Suitably informed

• Freely given

• Fundamental principle: right to consent or

refuse treatment

Montgomery principles 2015

1. Discuss the risks and benefits of the

proposed treatment

2. Discuss the available alternatives

3. Discuss the risks and benefits of the

alternatives

4. Be mindful of the patient’s individuality

Who is competent?

• Age of capacity – presumed to be competent once 16 years – Family Law Reform Act 1969 (MCA applies to 16+)

• Under 16 years? Gillick v West Norfolk and Wisbech AHA (1985) - (Fraser guidelines) ‘sufficient understanding and intelligence to understand fully what is involved’

• Child/young person withholding consent (under 18 years)

Parental responsibility

• Right to consent to treatment on behalf of child provided in interests of child (not absolute – inappropriate treatment; refusal not in child’s interest)

• Statutory right of access to health records but if child capable, must consent

Mental Capacity Act: Five statutory

principles

• Assume capacity unless it is established

capacity lacking

• Take all practicable steps to help a person

make a decision

• An unwise decision does not alone indicate

lack of capacity

• Any action/decision under the Act for or on

behalf of a person who lacks capacity must

be done in his best interests

• And done in the least restrictive way

Capacity

• Presumption of capacity (over 16)

• Does an impairment of the mind mean that

the person is unable to make the decision at

the time it needs to be made?

• Who assesses? Person who is directly

concerned with the individual at the time the

decision needs to be made

• Reasonable belief of lack of capacity

Determining capacity test

• Understand treatment information (nature, purpose, consequences of)

• Retain treatment information

• Use or weigh it in the balance to arrive at a decision

• Able to communicate their decision

Best interests and the MCA 2005

• Not defined

• Checklist of common factors that must always

be considered:

• Encourage participation; identify all relevant

circumstances; find out person’s views; avoid

discrimination; assess whether person might

regain capacity; life-sustaining treatment

safeguards; consult others; avoid restricting

person’s rights

• Exceptions: prior advance decision

Case Study 1

Wound care: Diabetic leg ulcer

Dressed at patient’s home

Nurse records the relevant treatment

Wound deteriorates… leg amputated

What will the court

examine?

Case study 2

Child visits clinic with fever, no rash

Nurse records checks

Nurse verbally informs parent to return if

condition fails to improve

Child develops meningitis

How could risk of accusations of

negligence be reduced?

Case study 3

Patient severe allergic reaction

Nurse seeks advice from doctor who

won’t examine and advises antibiotics

Nurse accused of failure to

escalate/seek admission to hospital

What could be the focus here?

What is the main lesson?

Case study 4

Nurse prescriber gives vaccination

Patient develops side effects

No record of advice given about side

effects

How do you record consent discussions

to avoid criticism?