Law and ethics in nursing

University Degree Medicine and Dentistry

This assignment is based on the ethical and legal issues that are significant to nursing practice. The specific areas that are going to be covered will be that of consent, accountability, duty of care, the Nursing and Midwifery council’s code of professional conduct and the four fundamental principles used in ethical decision making, also known as principlism.

The following statement will also be discussed: “Ignorance of the law is no defence and the nurse should be aware of the limits which the law imposes on her, and also the power it gives her” (Dimond 2004). Nursing practice is affected by many pieces of legislation and law (Kozier) and so areas such as negligence and trespass will be discussed. A scenario taken from practice will then focus on some key legal and ethical issues that arise during practice, adhering to confidentiality at all times. The main issue from the scenario that will then be discussed is that of informed consent and also how a nurse may use her role to influence people and their decisions and what the implications this could cause. Throughout the assignment, personal reflective thoughts will be given to show learning and understanding. A conclusion of what has been discussed throughout the assignment will then summarise the main points and make recommendations for future practice.

As a health care professional, nurses are accountable for their acts and omissions within four areas; the public, the patient, their employer and the Nursing and Midwifery Council (Kozier 2008). Accountability refers to a person been answerable for their own actions (Heath el al. 1995), and also been a responsible person being able to give a rational, coherent account of their actions (Thompson et al. 2000). A nurse is accountable to their employer for the way in which they practice and this is regulated through documentation such as the contract of employment (Walsh 2000). This contract of employment is an agreement both the employee and employer enter into that is protected by law (Staunton and Chiarella 2003). The Employment Rights Act (1996) sets out certain rights that the employee has and gives guidance to the employer in regards to what the contract of employment must include such as a description of duties the employee is to undertake.

A nurse is accountable to the public in the form of criminal law and they have a duty to maintain standards of care, which includes reporting incidences of negligence and poor patient care (Thompson et al. 2006). These professional standards of care are set out by the Nursing and Midwifery Council (2008) who states that nurses must always act lawfully and uphold the reputation of their profession. Part of this professional accountability includes the delegation of work. The NMC (2008) states that when a nurse delegates work, they must ensure the person is able to properly carry out the task and it must be ensured it has been done. When in practice, as a student nurse, my mentor may ask me to take a patients blood pressure. I would carry out the task and report any findings back to my mentor, but it is ultimately my mentor’s responsibility as a registered nurse to ensure I have carried the task out properly, as she is accountable for the patient and must ensure any care is carried out safely and effectively, as she would if she was taking the blood pressure herself. Delegation involves the transfer of responsibility to another person to perform a task, but the delegator, in this case the nurse, is still accountable for the task (Curtis and Nicholl 2004). The council also states that nurses have a responsibility to deliver safe, effective evidence based care (NMC 2006).

Nurses are accountable to their patients in the form of civil law and owe duty of care to them. This duty of care was recognised through the case of Donoghue versus Stevenson (1932). The case consisted of a lady, Donoghue, drinking a bottle of ginger beer which her friend had purchased for her. Half way through consuming the drink, Donoghue noticed part of a decomposed snail fall from the bottle into the beaker in which she was drinking from. Donoghue later complained of stomach pains, which a Doctor diagnosed as gastroenteritis as a result of consuming the contaminated drink, and claimed that she had suffered emotional stress as a result of the situation. Donoghue later brought an action of Tort negligence against Stevenson, claiming he owed purchasers of his product a duty to ensure no harmful elements contaminated his product. Donoghue claimed £500 on the grounds that Stevenson owed a duty of care to the consumers of his product to ensure it contained no substances that could cause harm. Years later, the case was discussed further and Lord Atkin made a speech that revealed his neighbour principle in light of the case (Cited in Stone 1965):

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question (p.176).

This statement structures the basis on which duty of care is formed and suggests that a duty of care exists when it is reasonably foreseeable that a persons action may cause harm to another person (Dimond 2005). This is an important statement for nurses to consider as by the sense of a nurse-patient relationship, there is always a duty of care owed by the nurse to their patient (Dimond 2005), and if this duty of care was to be breached, the question that must be asked is what standard of care has been given? The standard of care is measured by using the Bolam test. This test was brought about from the case Bolam V. Friern Hospital Management Committee (1957). This case involved a doctor carrying out Electro convulsive treatment (EVT) on a patient, Bolam. When the patient was undergoing the treatment, the doctor did not administer muscle relaxants, which is usually given, and he did not restrain his limbs. As a result, Bolam fractured his hip whilst undergoing the treatment. The legal question then asked was whether the doctor was negligent and whether he had acted in accordance with what other professionals in the same field would have done (Hope et al. 2003). Even though it was found that most doctors in the same field would have used either restraint or muscle relaxants when carrying out EVT, there was a small number of professionals that supported the method used on Bolam and so the doctor was found not to be negligent as he could not be found guilty just because some of the doctors disagreed with his methods (Elliott and Quinn 2005). The Bolam test therefore is the method of measuring standards of care by seeing what a responsible body of professionals in a similar field to the professional in question would do in the same situation, at that point in time (Tingle and Cribb 2002).

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In practice it can be seen that a patient who is very unsteady on their feet is at high risk of falling and it can be reasonably foreseeable that the patient could fall. In this situation, the nurse should take appropriate action to try and prevent the patient falling, and this falls within the duty of care that the nurse owes the patient. The nurse could communicate with other staff about the patient’s mobility and also put interventions in place to help prevent the patient falling. However, if the nurse was to ignore this reasonably foreseeable event and the patient did fall, the nurse would be in breach of her duty and could be negligent. For an act of negligence to be established, it must first be determined that there is a duty of care owed (Morgan 1998). The Bolam test may be one way of establishing negligence in this case as other nurses in the same field may be asked what actions they would have taken in this situation.

Negligence is a Tort, a civil wrong, where the patient must prove that they were owed a duty of care by the professional, in which the professional was in breach of (Cooke 2005) and it must be proved that the patient has suffered harm as a result of a nurse’s actions, or inactions (Dimond 2003). A Tort, French for ‘wrong’ (Harlow 2005), is simply a legal wrong, where there has been no breach of contract (Tingle and Cribb 2002) and various forms of Tort include trespass, battery and negligence (Elliott and Quinn 2005). Battery, a form of trespass, is when intentional force or touching of another person takes place without their valid consent (Cooke 2005). An example of this is when I witnessed a nurse grabbing a patients arm to take his pulse without first gaining consent or explaining to him ‘I am going to take your pulse if that’s ok?’ This is a very simple example, but it shows how a lack of consent could lead to a case of trespass if the patient interpreted it wrong or took offence, even though it would be very rare in this instance.

Civil law (Tort law) and criminal law are seen as two different types of laws. Criminal laws are generally dealt with in criminal courts for crimes such as rape or murder where imprisonment is a possibility, whereas civil cases for wrongdoings such as trespass are dealt with in civil courts where imprisonment is very rare and compensation in the form of money is usually given to the injured party (Elias et al. 2005).

In the case of trespass, it does not have to be proved that any harm has occurred to the patient, which could have been the case in the above situation. However, if the patient could prove that they would not have agreed to the procedure having known the risks beforehand and they can prove that they have suffered harm as a result, then they could succeed in a case of negligence against the nurse (Dimond 2003).

Nurses have both a professional and a legal duty of care (Nursing and Midwifery Council (2007).

The following is the scenario that was witnessed on a ward that presents both legal and ethical implications.

A nurse on a surgical ward was administering the bed time medication. She had been round three of the patients before she came to a 63 year old lady. This lady was bed bound and waiting to have surgery in the next few days. Since the lady was bedbound, the doctor had prescribed for a clexane injection to be given which contains enoxaparin that helps prevent thrombosis (Hopkins 1998). This injection was prescribed to be administered with the bed time medications. so the nurse administering the medication this particular night prepared to give the lady the injection. The nurse walked over to the lady and pulled the curtains around them. She then went on to pull the sheet back and lift the ladies top to expose the abdomen, which is where the injection is usually administered into. Just as the nurse was about to administer the injection the lady asked the nurse what she was doing. The nurse replied that she was giving her the injection, so the lady said ‘what injection’? The nurse then went on to explain that it was an injection that the Doctor had prescribed to be given to her, and then continued to administer it. She did not explain what the injection was for or any side affects it may cause. The lady did not argue with this and nothing else was then said about the matter, so the nurse continued with the round.

There are many legal and ethical implications within this situation with the main issue being that of consent. As McHale et al. (1997) states, when a nurse touches a patient weather it is to examine them or give an injection, valid consent must first be obtained. For consent to be valid it must be informed, voluntary and competent and professionals have a duty to the patient to provide any information to them about their condition, treatment and prognosis (Halstead and Vernon 2000). Valid voluntary consent means that the patient must not be under any duress or influence from the professional (Booth 2002). Informed consent consists of protecting an individual’s rights and autonomy by giving them the appropriate information required, relevant to their own needs, to make an educated decision about their own care (Schwartz et al. 2002). There are currently no laws in England that specifically cover adult consent in health care, but there are many laws and acts that may help protect the patient against suffering from poor consent issues, such as the professional running the risk of committing trespass or negligence, or not fulfilling their duty of care to a patient. Those proceeding without consent, or in the face of a valid refusal, risk committing battery or assault (Halstead and Vernon 2000).

If the patient is not given enough information to make a decision or in a way they can’t understand, then their consent may be in-valid (Department of Health (DoH) 2001).

In the above situation then, it is apparent that the nurse did not gain fully informed valid consent before she gave the treatment. No information about the treatment was given to the patient other than ‘the doctor has prescribed it’. By only giving this limited amount of information, it can be seen that the nurse is taking the patients autonomy and right to choose away from them. Scwartz et al. (2002) describes this act as the professional having the balance of power over the patient and taking the ‘paternalistic’ position. This paternalistic position refers to the concept that a nurse has the best interests of the patient in mind and so acts of their behalf believing their actions are justified as they have the knowledge (Cherry and Jacob 2005). It could be argued that acting in a paternalistic way takes any unnecessary burden of decision making away from the patient and lets the professional decide what is best (Hewitt-Taylor 2004). However, Rumbold (2000) states that autonomy and paternalism often conflict especially in the case of informed consent. Fromer (1981) states that paternalism is only acceptable when a patient’s safety is in danger, and so careful consideration is required before paternalism in informed consent can be justified. This relates to how Dimond (2004), suggests that nurses should be aware of the power they have and so should not use this power to coerce a person. However, since part of a nurse’s role is to empower patients and make them as autonomous as possible (Mason et al. 2007), patients should be given the information they need to assist with decision making involving their care.

As Dimond (2004) states, nurses should be aware of the power they have and know the limits of the law in which they work. Nurses must not take a competent adult’s right to choose away from them and this right is protected by the Universal Declaration of Human Rights (1948) as the declaration states that “all human beings are born free and equal in dignity and rights”. Every adult should be seen as competent until they are proven to lack capacity (Mental capacity Act 2005), and so every person should be given equal rights and the choice to make decisions on their own care.

It could be assumed that in this situation, the nurse thought that the patient had already had information about the injection or had previously received it, and so thought consent had already been given, but as the DoH (2001) states, patients can change their mind or withdraw consent at any time, so consent should be seen as an ongoing process that is checked every time treatment is carried out.

However, because of the nature of a nurse’s role, especially in maintaining respect and privacy for the patient and ensuring patient confidence, it requires the nurse to use ethical consideration when making decisions and carrying out care (Chaloner 2007a), as well as considering the law and code of conduct she has to adhere to.

Ethics is a division of philosophy concerned with determining right and wrong in relation to people’s decisions and actions (Chaloner 2007b). Within ethics, there are various divisions, such as bioethics in which there are further divisions such as nursing ethics and biomedical ethics (Brent 2000). In nursing ethics there are many theories and moral principles that help with ethical decision making such as the theories of deontology and utilitarianism and the four fundamental ethical principles, also known as principlism (Brent 2000). These four principles consist of respect for persons, principle of justice, principle of beneficence (or non-maleficence) and respect for persons autonomy, which all help aid decision making in ethical dilemmas (Ambrosino and Goldstein 2008). A great deal work was done on these four principles by Tom Beauchamp and James Childress who established the use of these principles in today’s health care system (Johnstone 2008). Principlism is not a model nor is it an theory, but it is a framework that helps with ethical descision making in health care (Masters 2005). The principle of beneficence means to always do good whereas non-maleficence means to do no harm (Rumbold 2000). This principle is set out in the NMC standards of conduct, performance and ethics for nurses and midwives (2008) as it states that nurses are personally accountable for their acts and omissions and must always be able to justify their decisions. If a nurse was to withhold a certain medication from a patient on the grounds she thought it would conflict with another treatment the patient was undergoing, she would have to justify this omission, which on the principle of non-maleficence, and the fact she owes the patient a duty of care, is that she wanted to do no harm to the patient.

Deontology ethics is concerned with the rightness and wrongness of a persons actions rather than the outcome. Bentham (1834), a great ethical theorist, states that

The principle, then, on which Deontology is grounded, is the principle of Utility; in other words, that every action is right or wrong-worthy or unworthy-deserving approbation or disapprobation, in proportion to its tendency to contribute to, or to diminish the amount of public happiness (p. 23-24)

Deontology emphasises the importance of respect for persons, maintaining autonomy, and taking responsibility for your own decisions, but it does not however take the consequences on one’s decisions into account (Chenoweth and McAuliffe 2005). If a Young Persons Health Advisor (YPHA) was to let the parents know that that their child was planning to run away from home, then this would be the right thing to do at that time in the eyes of a deontologist, regardless of the implications of passing this information on, as the YPHA had fulfilled her duty and done the right thing. In the scenario mentioned before of the nurse failing to gain valid informed consent, a deontologist would argue that it was morally wrong for the nurse not to explain the administration of the injection to the patient, even though the outcome of the injection was positive, as it took the patients autonomy away from her and it did not show respect for persons.

Opposed to deontologists are utilitarianisms. Utilitarianism is concerned with doing the greatest good for the greatest number and this theory was supported by theorists such as John Stuart Mill and Jeremy Bentham (Chenoweth and McAuliffe 2005).

Rules about informed consent are based on the moral principle of respect for autonomy brent 2000

The Nursing and Midwifery Council (NMC) is a supervisory body for all nurses, midwives and specialist community public health nurses in the United Kingdom who maintain a register of all those qualified to practise (NMC 2008a). They set the standards of care that should be delivered and a code of conduct that should be adhered to. The NMC was originally the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC) but was changed to the NMC in 2002 under the Nurses and Midwifery order (2001) (Stuart 2003). The Nursing and Midwifery order (2001) states that the main function of the NMC is to set and maintain standards of training, education and conduct of nurses and midwives, and to ensure the safety of the public who use the services of the professionals on the councils register. The NMC have a code of conduct that is the main source of professional accountability; the Code: Standards of conduct, performance and ethics for nurses and midwives, which sets out the minimum standard in which nurses should be working (Caulfield 2005). Ultimately, the main function of the council is to protect the public and ensure all nurses work within a set standard (Field and Smith 2008), and to also outline the ethical standard in which nurses should be behaving (Ciccone 2006). The NMC also have the power to remove nurses and midwives from the register and discipline them to protect the public if they are deemed to be unfit to practise (Payne-James et al. 2004). However, the removal of a practitioner from the register would only happen if there were to be sufficient evidence available to support a serious charge of misconduct (Spouse et al. 2008).

The NMC provides guidance on many issues in health care such as confidentiality and record keeping, however, these guidelines can sometimes come into conflict with other sources of conduct and law (Caulfield 2005) such as a nurse’s contract of employment or the policy of the authority in which they work under. The NMC code of conduct is often updated because of this and so nurses should ensure they keep up to date with any changes and make sure they work within these guidelines (Beech 2007). There are many statutory laws that support the guidelines of the NMC in regards to issues such as record keeping and confidentiality such as The Data Protection Act (1998). For example, the act states that personal information should not be disclosed without the persons consent unless it is the interest of the public that the information is disclosed. With respect to this, the NMC standards of conduct, performance and ethics (2008) stipulate that a patient’s right to confidentiality must be respected, unless the information needs disclosing because someone is at risk. If a young lady of 18 was to disclose to a practice nurse on a routine appointment to change a dressing, that she wanted to take her own life, the nurse would be obligated by law, and she would owe a duty of care, to pass this information on in order to protect the young lady from harm. However, if the young lady was to disclose to the nurse that she was pregnant but did not want anyone else to know, the nurse would be bound by the professional guidelines and law, to keep this information confidential as there is no risk of harm occurring. The Data protection Act (1998) also states that personal information should be accurate and kept up to date, which co-insides with the NMC stating that nurses should keep clear, accurate records ensuring they are completed soon after an event has happened.

Department of Health (2001) 12 key points on consent: the law in England

There is a difference between making information available and communicating it effectively to the patient (Gallagher and McHale 2001).

Bristol report

4 principles-Beneficence, non-malficence, justice and respect for persons autonomy

Before patient records are used in research, an ethical committee should first approve of this (Nursing and Midwifery Council 2007).

Patients records should be confidential at all times and so consent must first be obtained before they are used in research (McEvoy 1999).

A health record consists of information regarding the health and care of an individual made by or on behalf of a health professional (Data Protection Act 1998 section 68). A nurse’s responsibility in regards to health records is to ensure they are accurate, factual and concise (Oxtoby 2004). It must also be ensured that all records are dated and signed by the nurse in a way that the record cannot be erased (Owen 2005).

In most situations, patients records are the initial source of enquiry when investigating an alegation (Bell 2002).

Nurses are responsible for maintaing health records and are accountable if the record is not accurate (Owen 2005).

The Nursing and Midwifery Council (2007) state that the courts approach to record keeping is that if it is not documented, it has not been done. Good record keeping can improve quality of care and it enables continuity of care between members of the team (Timmins 2007).

If a patient was to suffer harm as a result of colleague not been able to read poorly written notes, then the nurse could be accused of negligence (McGeehan 2007). Cases have been known to be won or lost depending on just the quality of the nurses documentation (Field and Smith 2008).

McGeehan (2007) states that poor record keeping could adversely affect clinical negligence claims.

As cases might take years before coming to court,

a nurse’s documentation is essential for the recollection

of events surrounding the case. Therefore,

comprehensive records are essential.

In Court, nursing records are the most crucial defence a nurse has (Oxtoby 2004),

Table of Cases

Bolam V. Friern Barnet HMC (1957) 2 All ER 118; 1WLR 528

Donoghue V. Stevenson (1932) AC 562. House of Lords

Table of Statute

Data protection Act (1998)

Mental Capacity Act (2005)

Nursing and Midwifery Order (2001)

Universal Declaration of Human Rights (1948)

Reference list

Beech, M. (2007) Confidentiality in health care: Conflicting legal and ethical issues Nursing Standard Vol. 21, No. 21, January 31st 2007, p.42-46

Caulfield, H. (2005) Accountability: Accountability Oxford: Blackwell Publishing

Chaloner, C. (2007a) Ethics in nursing: the way forward Nursing Standard Vol. 21, No. 38, May 30th 2007, p. 40-41

Chaloner, C. (2007b) An introduction to ethics in nursing Nursing Standard Vol. 21, No. 32, April 18th 2007, p. 42-46

Cherry, B. and Jacob, S. (2005) Contemporary nursing: issues, trends, & management (3rd edn.) Massachusetts: Elsevier Health Sciences

Ciccone, G. (2006) Don’t be a code breaker Nursing Standard Vol. 20, No. 25, March 1st 2006, p. 69

Cooke, P. (2005) Law of tort (7th edn.) United Kingdom: Pearson Education

Curtis, E. and Nicholl, H. (2004) Delegation: a key function of nursing Nursing Management Vol. 11, No. 4, July 4th 2004, p. 26-31

Elliott, C. and Quinn, F. (2005) Tort Law (5th edn.) United Kingdom: Pearson Education

Field, L. and Smith, B. (2008) Nursing Care: An Essential Guide United Kingdom: Pearson Education

Fromer, M. (1981) Ethical issues in health care St Lois: Mosby

Heath, H. B., Potter, P. A. and Perry, A. (1995) Potter and Perry's Foundations in Nursing Theory and Practice Massachusetts: Elsevier Health Sciences

Hope, T., Hope, R. A., Savulescu, J. and Hendrick J. (2003) Medical Ethics and Law: The Core Curriculum Massachusetts: Elsevier Health Sciences

Hopkins, S. J. (1998) Principal Drugs: An Alphabetical Guide to Modern Therapeutic Agents and Their Use in Some Common Disorders (11th edn.) Massachusetts: Elsevier Health Sciences

Kozier, B. (2008) Fundamentals of nursing United Kingdom: Pearson Education

Mason, D., Leavitt, J. K. and Chaffee, M. W. (2007) Policy & politics in nursing and health care (5th edn.) Massachusetts: Elsevier Health Sciences, 2007

Masters, K. (2005) Role development in professional nursing practice Massachusetts: Jones and Bartlett Publishers

McHale, J., Fox, M. and Murphy, J. (1997) Health Care Law: Text, Cases and Materials London: Sweet & Maxwell

McKane, M., and Tolson, D. (2000) Research, ethics and the data protection legislation Nursing Standard Vol.14, No.20, P.36-41, February 2nd 2000

Nursing and Midwifery Council (2008a) What is the Nursing and Midwifery Council? NMC

Nursing and Midwifery Council (2007) NMC record keeping guidance NMC

Payne-James, J., Wall, I. and Dean, P. (2004) Medico-legal Essentials in Healthcare (2nd edn.) Cambridge: Cambridge University Press

Schwartz, L., Preece, P. and Hendry, R. (2002) Medical Ethics: A Case Based Approach Massachusetts: Elsevier Health Sciences

Spouse, J., Cox, C. and Cook, M. J. (2008) Common Foundation Studies in nursing (4th edn.) Massachusetts: Elsevier Health Sciences

Staunton, P. and Chiarella, M. (2003) Nursing and the law Australia: Elsevier

Stone, J. (1965) Human Law and Human Justice Stanford: Stanford University Press

Stuart, C. (2003) Assessment, Supervision, and Support in Clinical Practice: A Guide for Nurses, Midwives, and Other Health Professionals Massachusetts: Elsevier Health Sciences

Thompson, I., Melia, K. and Boyd, K. (2000) Nursing ethics (4th edn.) Massachusetts: Elsevier health sciences

Thompson, I, Melia, K., Boyd, K. and Horsburgh, D. (2006) Nursing Ethics (5th edn.) Massachusetts: Elsevier health sciences.

Tingle, J. and Cribb, A. (2002) Nursing law and ethics (2nd edn.) Oxford: Blackwell Publishing

Walsh, M. (2000) Nursing Frontiers: Accountability and the boundaries of care Massachusetts: Elsevier Health Sciences.

Nurses and the law: a guide to principles and applications

By Nancy J. Brent

Edition: 2, illustrated

Published by Elsevier Health Sciences, 2000

Ventilatory Support for Chronic Respiratory Failure

By Nicolino Ambrosino, Roger Goldstein

Contributor Nicolino Ambrosino, Roger Goldstein

Edition: illustrated

Published by Informa Health Care, 2008

Bioethics: A Nursing Perspective

By Megan-Jane Johnstone

Edition: 5, illustrated

Published by Elsevier Health Sciences, 2008

Deontology; or, The science of morality, from the MSS. of J. Bentham ed. by J. Bowring: or, The science of morality, from the MSS. of J. Bentham ed. by J. Bowring

By Jeremy Bentham

Published by , 1834

Item notes: v.1

Original from Oxford University

The Road to Social Work & Human Service Practice: An Introductory Text

By Lesley Chenoweth, Donna McAuliffe

Published by Thomson Learning Nelson, 2005

Nursing and Midwifery Council (2006) Accountability NMC