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. Administrative Law When a state legislature passes a statute, anadministrative agency is given authority to createrules & regulations to enforce the statutory laws.e.g. It is an objective test and therefore is not dependent upon the particular skills and knowledge of the practitioner. Civil Law - Definition, Examples, Types, Cases, and Systems Case law has a less direct day-to-day impact on nursing practice but has shaped and advanced the profession. 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. 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. If you have questions or concerns about a particular matter, please request a free consultation with a lawyer. Once known, the question arises as to whether the newly discovered ‘foreseeable’ risk is an ‘unreasonable risk’. Some of the procedures performed by nursing staff pose risks to patients should the procedures be performed without due care and skill. The common law remains the major source of law covering clinical practice. Examples from the workplace will be used to guide a discussion. Laws: 1. impose a duty to conform to a specific standard, 2. apply to all nurses, 3. can be enforced. This branch of civil law deals with torts or civil wrongs and personal injuries, which resulted from the actions of another person or an entity, such as a nursing home. This is called the ‘egg-shell skull rule’. WB Saunders/Baillière Tindall, Sydney. There are three main components. Common types of intentional torts at nursing homes are physical or sexual assaults or deliberate inflictions of emotional pain. Common law is a term used to refer to law that is developed through decisions of the court, rather than by relying solely on statutes or regulations. If you believe someone you love is suffering nursing home abuse or neglect, then help the individual get justice. If you worry your loved one is a victim of nursing home abuse or neglect, get help from a nursing home abuse lawyer. 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. Thus an injured person is required to take reasonable steps to reduce the effects of (ameliorate) the harm caused. Operating alongside these changes is a higher patient expectation of a good outcome from the delivery of healthcare services. 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. Civil law involves legal actions taken by complainants against another or others seeking a civil remedy for a legally recognised wrong—for example, a complainant (the plaintiff) seeking compensation for pain and suffering as a result of a nurse giving an injection incorrectly. Common law is based upon the doctrine of precedent (i.e. 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. 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. ... nursing policies, nursing education and nursing practice are worth examining. Law defining the scope of nursing practice in a given state. 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. You’re probably left with even more questions, so let’s dig into some of the basic differentiators between civil and criminal law. second negligent act must be such that the chain of causation flowing from the first negligent act is broken. 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. 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. 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. 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. Legislation in all jurisdictions provides for limitation periods to apply for civil claims in the courts (e.g. Civil law offers a person or group opportunities to resolve disputes and collect compensation for injuries suffered due to another’s reckless acts or negligent behavior. • Register a child’s birth – an example of the law requiring a particular action, in this case under the Birth and Deaths Registration Act 1875. Many hospitals and state agencies also employ in … When a person is negligent or careless in a way that causes harm to someone else, the victim of the negligence can sue. Examples are defamation (including libel and slander), breach of contract, negligence resulting in injury or death, and property damage. The negligent practitioner is normally referred to as the defendant in the case. by looking at how cases have been decided in the past and applying the principles developed in those cases to the present). Law firms with health law practice fields provide legal services to hospitals, health insurance companies, nursing homes, physician practices, medical device manufacturers, and others. The English language influences delays in the GCC In reading the October 1 News, regarding the article "Many lawyers are still holding themselves out as civil law notaries," it seems to me that there is a simple solution. This is sometimes referred to as ‘balancing the risks’. The normative rules were: • Honour your mother and father – this is established through religious teachings and reflects the fifth commandment of the Ten Commandments. It is within these jurisdictions, as well as in England, that law relevant to nursing practice has developed. The standard differs from that of a criminal case, in which the prosecution must prove a case “beyond a reasonable doubt.”. 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. Less important cases are unreported but can still be accessed. The plaintiff, Arlene Townsend, had repeatedly fallen while living at the nursing home and was not properly supervised. 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 enrolled nurse’s practice will be measured against that of the reasonably competent enrolled nurse. This is called civil liability or civil negligence. 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. However, judges generally adhere to the principles developed in previous common law cases heard locally, or from other respected common law courts. Thus the English common law forms the basis of the legal systems of, among others, Australia, New Zealand, Canada and the United States. the. Find out more below. Public laws protect the public while civil law deals with conflicts between a nurse and a patient. Several categories fall under civil law. 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. 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. An example of a civil law violation for a nurse is negligence or malpractice. Civil Negligence. An introduction to legal aspects of nursing practice. 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. When a person is negligent or careless in a way that causes harm to someone else, the victim of the negligence can sue. Unlike in criminal law when the government files charges, the injured party files a civil lawsuit. Under common law, healthcare professionals have a duty of care towards their clients. Disclaimer: While we try to provide accurate information, nothing on this page is intended as legal advice. Back-timing a morphine order is an example of fraud and has resulted in disciplinary action against a nurse’s license by the board of nursing in Nevada State Board of Nursing v. Merkley (1997). Common laws vary depending on the jurisdiction, but in general, the ruling of a judge is often used as a basis for deciding future similar cases. Civil law actions must be brought by an attorney hired by the injured party (the plaintiff) against the alleged wrongdoer (the defendant). 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. Whether or not a breach of the duty of care has occurred requires consideration of the standard of care required in the circumstances. 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. You can fill out the contact form on any page on this website, or call 1-866-548-9636 to get legal help. Civil Law. Firstly, because I am the author of a text book called “Nursing and The Law”, which is a recommended text book for nursing and allied health professionals. A nurse can lose his or her license to practice if he or she violates a public law. Differences in law from state to state and territory are less obvious in common law cases. For example, not all states/territories have legislated to control the reproductive technologies and those that have are not identical. ... nursing policies, nursing education and nursing practice are worth examining. 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. For example: 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. 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… The circumstances in which care is being provided can also be a relevant consideration in determining the standard of care required. against the nursing license or another denial of administrative privilege. Also known as “case law,” or “case precedent,” common law provides a contextual background for many legal concepts. 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