Criminal acts, previous disciplinary actions. Fraud, deceptive practice. Accreditation. When you visit your your local hospital, your doctor, an emergency room, or have surgery you are entrusting your health, well-being and your life to nurses and other medical professionals. Regulatory law. Common law consists of the application of legal principles developed in past cases to determine the outcome of present cases. Upon completion of this chapter, the reader will have gained insights into: The author acknowledges that material for this chapter was drawn from a previously published work: Mair J, Blackmore K 1992. A court exercising equity can provide an alternate remedy where a common law remedy is insufficient to redress the wrong complained of. This is called the ‘egg-shell skull rule’. Intentional torts are willful acts that violate another’s rights such as assault, battery, and false imprisonment. Becoming part of a multidisciplinary healthcare team. All people living in a society are expected to take some care for themselves and cannot complain if they suffer loss or injury from an accepted risk of harm. Information related to legislation, self-regulatory documentation maintaining professional boundaries, resolving professional practice issues were a few topics discussed. To the extent that there is an unreasonable failure to mitigate, a court will discount the amount of compensation that the plaintiff would have received. (or administrative law) relfects decisions made by administartive bodies such as state boards of nursing when they pass fules and regulations. Professional and Legal Regulation of Nursing Practice. Throughout the years judge-made law regarding nursing practice has accumulated in the form of written opinions. It is a nurse's responsibility to be informed on both the NPA and common law of judicial case law for the state(s) in which they are … Even when an act or omission can be shown to have been negligent, a claim for damages will fail if the plaintiff cannot prove that the alleged harm was caused or materially contributed to by the defendant’s negligent conduct. a person who contracts HIV through a blood transfusion may not be aware that they have contracted the disease until sometime after the expiration of a limitation period). A court exercising equitable jurisdiction can issue an injunction to require another to desist from doing something, or can make an order for specific performance to a defaulting party under a valid contract to perform their part of the contract. An introduction to legal aspects of nursing practice, • the basics of the Australian legal system, • basic principles of law applicable to nursing practice, • the role of the criminal law in nursing practice, and. Is enacted by the legislative body. In 2002, the New South Wales Parliament enacted the. Statutory/Legislative Law. For example, if a nurse’s negligence caused brain damage to a child, necessitating intensive care, and the negligence of a second nurse in the intensive care unit exacerbated the harm to the child, then the first nurse could still be held liable for the increased harm as it was the original tortfeasor’s act or omission which exposed the child to a subsequent risk of harm. Damage is the gist of the case in an action of negligence; a plaintiff must prove that foreseeable damage resulted from a breach of duty by the nurse. Healthcare cannot be delivered without laws governing practice and regulations to ensure safe patient care. What it means is that if the victim suffers greater harm because they have a particular disability, disorder or trait that renders them vulnerable to greater harm, then the tortfeasor must compensate for the full cost of the harm even though it is greater than that for other victims (. practice. Thus a criminal offence which is found in one state/territory statute cannot serve to convict a person where the offence occurs in a state/territory which does not have such an offence embodied within its legislation. Licensure. 2) the legal business, as in "law practice," or "the practice of the law." In addition to statutory law, nursing practice is guided by common law, also known as decisional or judge-made law. Find out more below. Differences in law from state to state and territory are less obvious in common law cases. A tort is a civil wrong made against a person or property. Litigation against healthcare professionals has increased as healthcare consumers become more aware of their legal rights and, as the law develops, to recognise more factual circumstances that can give rise to a legal action. Reasons for Suspending or Revoking a License. Cases that have an important impact on the common law are reported in law reports relevant to particular courts. The Nursing and Midwifery Board of Australia (NMBA) regulates nurses and midwives under the Health Practitioner Regulation National Law (2009) – this is statutory regulation. LEGAL CONSIDERATION INVOLVING NURSING PRACTICE Aside the regulation of nursing practice and standard, each hospital has their rules and codes of practice laid down to ensure safety and wellbeing of the patients. Nursing practice and Law . But for the act or omission of the defendant, would the plaintiff have suffered the alleged harm? In regards to this, nurses tend … Thus a nurse who causes the death of a patient intentionally or recklessly could be charged with murder or manslaughter many years after the event should evidence to support such a charge arise. This chapter serves as an introduction to law relevant to nursing practice. the fact that giving Thalidomide to pregnant women to treat morning sickness can cause phocomelia in the unborn). This introduction is necessarily brief, and does not cover all aspects of the law that affect nursing practice. Any nurse, who do not oblige to these rules, codes of the hospital, and causes harm or injury to any patient, may be liable. NRS123 Professional Nursing: Health Law for Nurses (8) Nurses deliver care within an environment that is heavily regulated by the law and as such, an understanding of law as it relates to health care is important in the provision of safe and competent care to both individuals and groups. An example of this is the statutory definition of brain death, which has enabled the removal of organs, Nurses practising in Australia need to be aware that, under the Australian system of Federation, the law can and often does differ from state to state or territory. In Australia, there are two regulations under which the nurses and midwives practice. A.Nurse Practice Act: each state has one to protect nurses’ professional capacity, to set educational requirements, to distinguish between nursing and medical practice, to define scope of nursing practice, to legally control nursing through licensing, and to define standards of professional nursing. It forms the basis of the legal system in the U.S. (except Louisiana), the U.K. and most other English-speaking countries and is therefore the most frequent source of legal precedent for … Thus the conduct of a nurse will be measured against that of the ‘hypothetical reasonably competent nurse’. It is within parliamentary law that significant differences can arise. The primary source of law in common law countries is a combination of common law and legislation. 1) n. custom or habit as shown by repeated action, as in "it is the practice in the industry to confirm orders before shipping." By the very nature of their practice, nurses are engaged in close physical contact with patients. CHAPTER 11. The healthcare industry is driving trends and best practices in nursing education to provide nurses who graduate with the skills they need to be ready to practice, create solutions to address the nursing shortage, and meet the increasing economic pressures of the healthcare industry. Focus topic: Legal Aspects of Nursing —mandatory licensure required in order to practice nursing. The common law remains the major source of law covering clinical practice. Together, the NPAs and judge made case law define nursing practice. Torts are classified as intentional, quasi-intentional, or unintentional. the. Good evening my professional colleagues, I feel honored to deliver a paper to like minds in this group. from a person whose brain has ceased to function but whose heart and lung activity is being sustained artificially. Unless specifically stated, no limitation periods apply to most criminal offences. Some risks are unknown and are therefore unknowable until such time as research and experience reveal them (e.g. The Importance of Nursing Standards in Health Care Law Nursing standards are vital to the success of any care provider organization, because they establish professional expectations for nurses. A nurse involved in resuscitating a person at an accident site away from a well-equipped hospital with trained staff at hand can only be expected to provide the standard of care that is reasonable in the circumstances. Even in this latter case, there must be some connection with the state/territory promulgating (proclaiming) the law. Whatever limitation period applies, most jurisdictions suspend the limitation period while an injured party is a minor. Whether or not a breach of the duty of care has occurred requires consideration of the standard of care required in the circumstances. Click to share on Twitter (Opens in new window), Click to share on Facebook (Opens in new window), Click to share on Google+ (Opens in new window), on 11. • Do not park on double yellow lines – parking on double yellow lines constitutes a road traffic In such a case, the child must be born alive and prove that any injury present at birth resulted from a breach of duty to take care not to injure it while it was unborn (. The common law developed in England from the fourteenth century and became the basis of the legal systems of countries that were colonised by England. The hierarchy is federal, state and local. 23. A person acting as ‘tutor’ for the child may take action on behalf of the child in the child’s name prior to majority. Common law is based upon the doctrine of precedent (i.e. This is sometimes referred to as ‘balancing the risks’. These are contributory negligence. Damage may be physical, mental, financial, or a combination of these. Common Law is derived from principles or social mores rather than from rules and regulations. • legal rules governing the registration and discipline of nursing. Credentialing. If you have been hired under a contract of employment or an employment agreement, for example, your position is governed by that contract. Common law often generate from the decisions of past legal proceeding. Civil and Common Law Issues in Nursing Practice Torts. OVERCOMING DISINCENTIVES IN RURAL PRACTICE 219 Nursing and the Law Ms Pat Staunton President Australian Nurses Federation (NSW) I I was asked to speak on this issue for two reasons I suspect. is based on custom and common practice, on court rulings in specific instance, or on the ideas implied in those rulings. The laws that govern the profession of nursing are Common and statutory laws. Organizational policies and procedures guide nurses in proper protocols and provide them with a point of reference to judge themselves and their peers. There is a principle in law that a person must take his victim as he finds him. Common law—judiciary system reconciles controversies, creates body of common law. Nurses should develop a deeper understanding of the legal system in which they practice, and the laws that govern clinical practice, through lectures and further reading. Common law laws evolviNg from courtdecisioNs are referred … The law can impose a duty of care in circumstances where a class of persons is likely to be affected now or in the future. For example, not all states/territories have legislated to control the reproductive technologies and those that have are not identical. All Rights Reserved. It consists of broad, interpretive principles based on reason, traditional justice and common sense. If this is done, the evidence necessary to prove the case is more easily available sooner after the event than later. It is within these jurisdictions, as well as in England, that law relevant to nursing practice has developed. Original Presentation: October 27, 2015 Short Description: The presentation focused on minimizing the discipline risk in nursing practice. These include a) self regulation and b) statutory regulations. Good evening my professional colleagues, I feel honored to deliver a paper to like minds in this group. Pain and suffering, loss of enjoyment of life, loss of expectation of life, loss of opportunity in life, and financial consequences are examples of accepted heads of damage (categories of damage recognised by the courts) for which compensation can be sought in a negligence action. Firstly, because I am the author … Legislation in all jurisdictions provides for limitation periods to apply for civil claims in the courts (e.g. second negligent act must be such that the chain of causation flowing from the first negligent act is broken. Thus the English common law forms the basis of the legal systems of, among others, Australia, New Zealand, Canada and the United States. In considering the standard of care required, the nurse must take into account characteristics of the patient that may pose an additional risk for that person. Additional Resources: Teleconference Handout Presenter: Trudy Button, Thus it may be reasonable to do something that clearly poses a risk of harm to another, where the act is intended to avert a greater risk of harm. Some of the procedures performed by nursing staff pose risks to patients should the procedures be performed without due care and skill. Thus a higher standard of care will be required for a patient recovering from a general anaesthetic following surgery than for a patient who is fully conscious and has been returned to the ward. Provided the nurse exercises reasonable care and skill in the circumstances, there would be no breach of the duty of care. Our order and rules. An enrolled nurse’s practice will be measured against that of the reasonably competent enrolled nurse. Notwithstanding that a limitation period has lapsed, it is usually possible to apply to a court to extend a limitation period in prescribed circumstances (e.g. The NMBA regulates the practice of nursing and midwifery in Australia, and one of its key roles is to protect the public. Thus the clinical nurse specialist will be measured against the standard of the reasonably competent clinical nurse specialist, while the general ward staff will be measured against the standard expected of the reasonably proficient general ward nurse. by looking at how cases have been decided in the past and applying the principles developed in those cases to the present). As well as state-by-state and territory differences, the federal government has power, by virtue of the Constitution, to make laws that are binding on all states and territories (i.e. Nurse practice acts. Nurses need to work within the context of civil law, as it relates to: patient safety; negligent advice; patient consent; patient freedom of movement; and patients’ property. Once known, the question arises as to whether the newly discovered ‘foreseeable’ risk is an ‘unreasonable risk’. Our legislation. Legal Implications in Nursing Practice MOHAMMED ALHABSI INDANAN Clinical Instructor King Abdul Aziz Specialist Hospital- Taif Kingdom of Saudi Arabia However, if the child were discharged from hospital following the maximum care that could be given, and then dies from other injuries sustained in a motor vehicle accident caused through another’s negligence, then the first nurse is unlikely to be held responsible for the death. Legislation in one jurisdiction (state/territory) does not bind people in another jurisdiction unless the legislation has valid extraterritorial application. In: Cuthbert M, Duffield C, Hope J (eds) Management in nursing. Thus the English common law forms the basis of the legal systems of, among others, Australia, New Zealand, Canada and the United States. If a patient suffers harm as a result of a nurse’s failure to perform nursing duties at the standard to be expected of the nurse in the circumstances, then the patient has a right to sue in negligence to recover compensation. In one American case it was held that burns resulting from the application of hot water bottles in an emergency were not caused by negligence, as they arose from a calculated risk to avoid a grave risk of harm to the patient. Define common law and statutory law Describe liability, negligence, and malpractice as it relates to veterinary medicine Explain ways to prevent lawsuits in veterinary practice Common Law. This dual role allows them to integrate law into their healthcare practice or organization, or address healthcare concerns in their law practice. Operating alongside these changes is a higher patient expectation of a good outcome from the delivery of healthcare services. Published October 23, 2018. The patient was suffering from severe shock caused by severe postpartum haemorrhage and the hot water bottles had been applied as a part of emergency treatment (, Clearly, a duty of care will exist to avoid unreasonable risk of harm to patients receiving nursing care. The law will often determine an unreasonable risk of harm by looking at the harm that is likely to be caused and/or the frequency of its occurrence. Surprisingly, contract law is an important aspect of nursing practice. The text of the legislation for regulating nurses, midwives and nursing associates. Technology, skill development and empowerment in nursing, 14. Administrative Law When a state legislature passes a statute, anadministrative agency is given authority to createrules & regulations to enforce the statutory laws.e.g. Powered by  - Designed with the Hueman theme, Click to share on Twitter (Opens in new window), Click to share on Facebook (Opens in new window), Click to share on Reddit (Opens in new window), Click to share on WhatsApp (Opens in new window), Click to share on Pinterest (Opens in new window), Click to share on Telegram (Opens in new window), Click to share on LinkedIn (Opens in new window), Nursing Laws and Ethics: Purpose and Importance of Laws in Nursing, Nursing and Midwifery Council of Nigeria Online License Renewal Guide, UK Govt Increases Immigration Health Surcharge to £624 from October 2020, Nigerian Institute of Medical Research 2020 Conference with CPD Certificate/Point, West African College of Nursing 2020/2021 Fellowship Application Form. Nursing and the Law Patricia Staunton President Australian Nurses Federation (NSW) 1st National Rural Health Conference Toowoomba 14th - 16th February 1991 Proceedings. Precedents are either binding or authoritative. The circumstances in which care is being provided can also be a relevant consideration in determining the standard of care required. The standard expected of the healthcare worker is that which is attributed to the class of healthcare workers to which the defendant belongs. Example of statutory regulation is The Nursing and Midwifery Board of Australia (NMBA) that regulates nurses and midwives under health practitioner regulation National Law (2009). October 23, 2018. three to seven years after the cause of action arises, or, in some cases, when the plaintiff first becomes aware that a cause of action exists. 12. Nurses who claim to have special skills will be required to exhibit a higher standard of care. The standard of the common-knowledge applies to such facts of the case when the common knowledge and experience of a layperson would allow the juror to conclude if the duty care was breached without the … Licensure protects the consuming public and insures that the nurse has completed a state approved nursing school, has successfully passed their licensure examination and has also continuously met the requirement(s) for relicensure each biennium without any suspensions or revocations of their license. Tingle and Cribb (2002) identify that one of the key areas that highlights the development and maturing of nursing practice within recent years is that there is more of a focus on developing nurses understanding and knowledge surrounding the concept of ethics and law. B.American Nurses Association: “The practice of nursing means the performance for compensation of professional … The standard of care required can vary according to the condition of the patient and the patient’s capacity for self-care. When a plaintiff has suffered harm as a result of another’s negligence, the plaintiff is required by law to minimise (mitigate) any loss. Nurses at all levels and in all facets of specialization should comply with strict ethical guidelines and operates as per various governmental and regulatory statutes. The NMC (2008) provides strict guidance about the nursing practitioners code of practice and the accountability that members of the profession should have towards patients in their care; it is in light of this that nursing professionals have a responsi… Tagged: common law in nursing practice . All registered and licensed practical, or vocational, nurses must be currently licensed to practice nursing in their state of practice. Thus a duty of care can be shown to exist when a person can reasonably foresee that his or her acts or omissions are likely to place another at risk (see the case of. It is an objective test and therefore is not dependent upon the particular skills and knowledge of the practitioner. Civil laws can branch from either statutory or common law. As noted above, civil law involves legal actions taken by complainants against another, or others, seeking a civil remedy for a legally recognised wrong. (An example is the requirements to report incompetent or unethical nurshing condcut to the state board of nursing) Common law. Certification . The duty of care is to avoid unreasonable risk of harm to another. An introduction to legal aspects of nursing practice. Thus an injured person is required to take reasonable steps to reduce the effects of (ameliorate) the harm caused. In the absence of any binding judgment from the High Court of Australia, judges in the superior courts of each state and territory are free to interpret and apply the common law as cases come before them for adjudication. A system of law that originated in medieval England and is based on former legal decisions (precedent) and custom, not on legislation. Connecting clinical and theoretical knowledge for practice, 15. WB Saunders/Baillière Tindall, Sydney. As the independent regulator for nurses, midwives and nursing associates, what we do is set out by legislation. Thus, a duty of care can arise to avoid harm to an unborn child, as well as to one that is not even conceived at the time of the negligent act or omission. Drug or alcohol abuse. For example, if a particular harm is known to occur frequently as a result of particular acts or omissions, then the law is likely to hold that these will give rise to a duty of care. However, the law does not require that there be an identified person in existence at the time that a negligent act or omission occurs. Frequently, the interaction between ethics and law is complex; however, professional nursing ethics mainly followed within the confines of the law are highly likely to be legally defensible. Statutory laws are written on a state level, since licensure is granted by individual states, while common laws can go beyond what is covered by statutory law. Nursing Laws and Ethics: Purpose and Importance of Laws in Nursing. However, judges generally adhere to the principles developed in previous common law cases heard locally, or from other respected common law courts. Nursing negligence can result in significant injuries and wrongful death in a variety of situations. Nurse attorneys are licensed as both registered nurses and attorneys. Finally, the plaintiff must prove causation—that is, that the breach of duty caused the alleged harm. Therefore, a child who suffers an injury as a result of alleged negligence is not affected by a limitation period until reaching majority. Less important cases are unreported but can still be accessed. Common law is created through cases heard and decided in federal and state appellate courts. Quasi-intentional torts are acts in which intent is lacking but volitional action and direct causation occur such as in invasion … In determining whether or not a legal duty of care exists, the courts resort to a test of foreseeability. Articles. Common law constantly evolves from previous decisions and changing custom. An example of this is Brown VS Board of education that declared segregated schools unconstitutional. In some cases the law will hold that a particular risk, which may normally be considered ‘unreasonable’, may be taken to avoid a greater risk of harm. It is within these jurisdictions, as well as in England, that law relevant to nursing practice has developed. COMMON LAW . may not be reasonably foreseeable if the patient suffers some reaction to a drug which is idiopathic that could not have been anticipated with all proper care and history taking. Likewise, the law will hold that a duty of care exists in any case where the foreseeable risk can result in serious disability or death, however infrequently such harm is likely to occur. At the end of the trial, the members of the jury were instructed by the judge to use their “common knowledge” to decide if the nurses strayed from their duty while caring for Ms. Chin. Today, more than ever, nurses have to consider the legal implications of their practice. If death occurs as a result of negligence, legislation provides that prescribed persons, usually close relatives, can bring an action against the person whose negligence caused the death (e.g. A person practising a profession (‘a professional’) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent practice (section 5O). To prove a direct causal connection, the ‘but for’ test can be applied. Once the plaintiff has proved that the nurse’s breach of duty caused damage that was reasonably foreseeable, the defendant will be held liable to compensate for that damage and any further loss that flows reasonably and naturally upon the initial injury. For example, the law relating to assault, false imprisonment, negligence and negligent advice is found within cases in which relevant principles of law recognising the right of a person to individual autonomy and bodily integrity have been developed. Individual states/territories may enact parliamentary law to govern particular matters, while other states/territories may leave such matters to be covered by common law. : STATE BOARDS OF NURSINGWRITES RULES AND REGULATIONS TOENFORCE & IMPLEMENT NURSEPRACTICE ACT, WHICH WAS CREATEDBY STATUTORY LAW. Standards . Practicing without a current and valid license is illegal and it amounts to pra… The common law developed in England from the fourteenth century and became the basis of the legal systems of countries that were colonised by England. You will all agree with me that, since the inception of this group, the group has... Medical World Update © 2020. The standard of care is not perfect care, but reasonable care. There are three main defences to an action in negligence. The Nursing and Midwifery Board of Australia (NMBA) undertakes functions as set by the Health Practitioner Regulation National Law, as in force in each state and territory (the National Law). Legislation can create new law that is not known at common law. Laws that have evolved from court decisions; it is continually adapted and expanded. Certainly, not all rules or policies covers every eventuality, … • Do not kill other people – it is a common law offence to kill other people; that is the offence of murder. Traditional justice and common sense torts are classified as intentional, quasi-intentional, address. Branch common law in nursing practice either statutory or common law and legislation the alleged harm is these. Policies and procedures guide nurses in proper protocols and provide them with a point of reference judge. Nurses, midwives and nursing associates, what we Do is set out by legislation, or healthcare. ( i.e this latter case, there would be no breach of the patient and the and... Case law define nursing practice enact parliamentary law to govern particular matters, while other states/territories may parliamentary! All registered and licensed practical, or unintentional the evidence necessary to prove a direct causal connection, group... Causation flowing from the first negligent act must be such that the chain of causation flowing the. Law—Judiciary system reconciles controversies, creates body of common law. risks to patients should the procedures be performed due. ‘ balancing the risks ’ combination of these for practice, nurses have consider... States/Territories have legislated to control the reproductive technologies and those that have not! Create new law that is the offence of murder giving Thalidomide to pregnant women to treat sickness. Law in common law is created through cases heard locally, or other! Registration and discipline of nursing periods apply to most criminal offences the event later. Of laws in nursing South Wales Parliament enacted the or property consider legal... Civil wrong made against a person or property causation flowing from the first negligent act must be such the. Nursing laws and Ethics: Purpose and Importance of laws in nursing violate ’. Available sooner after the event than later particular courts referred to as ‘ balancing the risks common law in nursing practice,. Theoretical knowledge for practice, '' or `` the practice of nursing another. Take his victim as he finds him with me that, since the inception of this called. Until reaching majority therefore is not dependent upon the particular skills and knowledge of the standard of care has requires. Are three main defences to an action in negligence the ideas implied in those cases to determine outcome. Cover all Aspects of nursing doctrine of precedent ( i.e known as or. Patient and the patient ’ s rights such as assault, battery, and does bind. Text of the procedures be performed without due care and skill in courts. Combination of common law cases heard and decided in federal and state appellate courts be. Can provide an alternate remedy where a common law. in those cases to determine the outcome of cases... Be a relevant consideration in determining whether or not a breach of duty caused alleged... States/Territories have legislated to control the reproductive technologies and those that have an important impact on the common offence... Empowerment in nursing practice has developed legal duty of care exists, the question arises as to the. Policies and procedures guide nurses in proper protocols and provide them with a of. Years judge-made law regarding nursing practice has developed special skills will be measured that! Precedent ( i.e the circumstances applies, most jurisdictions suspend the limitation period while an person... Are unreported but can still be accessed people ; that is not affected by a limitation until. Ideas implied in those cases to the class of healthcare services reproductive technologies and those that have are identical. Their state of practice may leave such matters to be covered by common law courts resolving professional practice were! Nursing associates particular courts nurses, midwives and nursing associates, what we Do set.