M

Duty of care and

6 professional negligence
i .i.AUNiNCi oi\)ix ri\ i:s

In this chapter, you will:

D e v e lo p an u n d e rs ta n d in g o l th e c o n c e p ts oi 'd u ly oT ca re ' and

's ta n d a rd o f ca re '
Learn h o w a n u rs e 's 's c o p e of p ra c tic e ' is d e te rm in e d

Lea rn h o w a n u rs e 's a c tio n s o r o m is s io n s m a y be d e te rm in e d to he

n e g lig e n t
Learn h o w to a v o id a c liru ] n e g lig e n tly
G ain an u n d e rs ta n d in g o l v ie a iio u s lia b ility a n d p ro fe s s io n a l in d e m n ity

Two ambulance officers attended a collapsed, unconscious person Following

ambulance protocol, a dose of intravenous adrenaline was administered The person
remained unresponsive A second dose of adrenaline was administered, as per the
ambulance protocol Consequently, the person suffered a cerebral bleed as a result of
high blood pressure induced by the adrenaline
The ambulance officer was initially found to be negligent, but the finding was overturned
on appeal The appeal judge determ ined that, by follow ing ambulance protocol, the
ambulance officer did provide a reasonable standard of care, and that the harm suffered
by the person was not the result of a breach of duty of care (Eburn 2007)

Duty of care
Chapter 4 noted that nurses have a duty of care towards their patients. Duty of
care refers to the legal obligation on a professional to exercise reasonable care
and skill in the provision of professional treatment:

[A] person comes under a duty of care in relation to the provision of advice
or information if he carries on a business or profession and in the course of it
provides advice or information of a kind which calls for skill and competence
or otherwise professes to possess skill and competence and he provides
advice or information when he knows or ought to know that the recipient
intends to act or rely on it.
(Mason J in Shaddock & Associates v Parramatta City Council 1981: 248-9)

The claim that health professionals have a duty of care towards their patients
has been established in common law. Perhaps the most significant case in this

129
r

130 lti nor; and law FOR Australian niji&es

respect comes from English common law, namely the 1932 House of Lords
judgment of Donoghne v Stevenson. In that case, May Donoghue, a customer in
a cafe, was served a drink that was found to have a decomposing snail in it.
Shortly afterwards, she developed gastroenteritis. Mrs Donoghue brought a
successful action for negligence against the cafe owner, Stevenson. The judge,
Lord Atkin, based his decision on the neighbour principle’:

At present I content myself with pointing out that in English law there must
be, and is, some general conception of relations giving rise to a duty of care,
of which the particular cases found in the books are but instances. The
liability for negligence . . . is no doubt based upon a general public senti­
ment of moral wrongdoing for which the offender must pay . . •The rule that
you are to love your neighbour becomes in law, you must not injure your
neighbour; and the lawyer’s question, Who is my neighbour? receives a
restricted reply. You musl 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 which are called in question.
(Donoghue v Stevenson 1932)

Prior to Donoghue v Stevenson, negligence claims could only be brought against a

party to a contract. The application of the neighbour principle by Lord Atkin
broadly extended the notion of duty of care so that it came to include the
relationship of health professionals to their patienLs.
This raises the question of how far a nurse’s duty of care extends. The degree
of duty owed by a nurse to a patient is determined by reference to ‘a reasonable
standard of care’ - in other words, the kind of conduct that a nurse owes to a
patient is that which any other similar nurse in a similar role could reasonably
be expected to provide for the same kind ot patient.

KKKLKCTIVR QUKSTION
A, 5 % n ft w i y g c l u - 11 : s d. fi t j r j t - ; , hi & a w q u :d y a lt g o & Id o u f i i n G i n g o u t w tifli; y O u f

d u ly o f c a re \$ t o w j r t f s y o u r p a tie n t* ?

A reasonable standard of care is that which could be expected of any other

similarly trained and experienced nurse in a similar role. This approach
 CHAPTER 6: DUTY OF CARE AND PROFESSIONAL NEGLIGENCE 1 3 1

to determining the standard of care follows what is known as the Bolam

principle’, after the judgment in the case of Bolam v Friern Hospital M anagement
Committee (1957). In that case, the judge accepted that peer behaviour was an
appropriate measure of the care required in any given circumstance.1 It is worth
noting, however - as stated in the report of the Ipp Review of the Law of
Negligence - that:

[Cjourts are never required to defer to expert opinion as such. What the law
says is that the court is entitled to accept a responsible body of expert
opinion, unless there is a strong reason to reject it. The principle underlying
this approach is that it is always for the court to decide what the test of
reasonable care requires in particular cases, and it is always for the court to
decide whether to defer to any particular body of expert opinion in the case
before it.
(Ipp 2002: 38)

It is common practice for courts to appeal to the views of a professional body to

determine standards of care. Applying the Bolam principle to determine what
constitutes a reasonable standard, a nurse s actions would be compared with
the actions of other nurses with similar levels of training and clinical experi­
ence, who are employed in a similar role. For example, all registered nurses are
taught how to bathe frail patients in such a way as to ensure that the patient
does not slip over, that they are not scalded by hot water, and that they dont
drown or suffer any other kind of avoidable harm. Because all registered nurses
are trained to bathe frail patients safely, the standard of care expected from one
registered nurse could be determined by comparison with almost any othei
registered nurse.
However, different types of nursing role will involve different types of care
with specialised standards of care. For example, a nurse trained in critical care
and with several years’ experience working in a coronary care unit would be
expected to exercise a much higher standard of care when nursing a patient with
a recent myocardial infarction than would a newly registered nurse who has
next to no training or experience in coronary care. For example, if a cardiac
patient complained of chest discomfort, the experienced nurse could be
expected to take an electrocardiograph (ECG), interpret it and respond
according to a cardiac care protocol, whereas a junior nurse might only be
expected to inform a doctor that the patient has chest discomfort, or perhaps to
take an ECG (depending upon the protocols in the unit). Because the standards
of care expected of nurses differ from role to role and from workplace to
 1 3 2 E T H IC '; A N D L A W F O I! A l J fj I M A L IA N N U R S E ;

workplace, it is essential that nurses understand their scope of practice and their
corresponding legal responsibilities. This fact is reflected in the professional
standards set by the Nursing and Midwifery Board of Australia (NMBA).
While peer comparison remains the most significant consideration in legal
determinations of standard of care, it is no longer the only consideration (Beran
2006). In 2002, the federal government commissioned an inquiry into negligence
and liability, which led to the publication of the Ipp Report (2002). The Ipp
Report was commissioned in response to public concerns about:

the increasing cost of financial liability arising from negligence compensation

and its impact on the cost of public liability insurance
the increasing cost of professional indemnity insurance for health
professionals
increasing costs as a result of the collapse of insurance company HIH
(Staunton & Chiarella 2013).

Central to the Ipp Report was an examination of the adequacy of the Bolam
principle, and the question of whether the standard of care should be deter­
mined by the court or by professional peers (Ipp 2002: 37). In coming to a
recommendation, the authors of the report noted a number of objections to the
Bolam principle (Ipp 2002: 39):

It gives too much weight to opinions that may be extreme.

It gives too much weight to a view that may be unrepresentative of a larger
body of practitioners.
It gives ‘added importance to the influence of so-called “rogue experts"'.

These objections are "demonstrated in the considerations expressed by the Ipp

Report in relation to the following example.

LAW 8
1TIIICS li\l A doctor failed to treat w ith penicillin a patient w h o had septic spots on her skin,
I’ H A u lC t even though he knew them to contain organisms capable of leading to
puerperal fever A number of distinguished doctors gave evidence that they
w ould not, in the circumstances, have treated [the patient] w ith penicillin
(Ipp 2002: 39).

The authors of the Ipp Report noted that, despite the support of peer
opinion, the Court of Appeal found the doctor negligent, because ‘he had
 CHAPTER (i: DLI1Y OF CAHt AND PH0FE3UKJNM NElll It'.ENCE 1 3 3

knowingly taken a risk of causing grave danger even though it could have been
easily and inexpensively avoided’ (Ipp 2002: 39). In other words, the fact that
doctors shared their opinion did not legally outweigh the harms done to the
patient.
The second example demonstrates an unintended but perverse effect of the
Bolam principle. It concerns a now-infamous research program at the National
Women’s Hospital in New Zealand, in which a number of women who had
returned positive Pap smears were deliberately not treated in order to see
whether they developed invasive cancer. Consequently, several of these women
died. The Ipp Report notes that, ‘Under a strict application of the Bolam
principle as originally formulated, the practitioners involved arguably were not
negligent’ (Ipp 2002: 39). According to the Bolam principle, the practitioners
involved in the research would not be negligent because there was agreement
between peers that the research was acceptable practice. The researchers did
not think that the fact that women would inevitably die from not receiving
treatment was a sufficient reason to stop the research. Clearly this shows that
peer agreement is insufficient as a guiding moral (and legal) framework if it
allows people to suffer and die.
In addition, the Ipp Report noted that the Bolam principle did not allow for
differences of opinion about ‘whether the generally accepted practice represents
best practice’ (Ipp 2002: 40). Consequently, the report recommended that:

In the Proposed Act, the test for determining the standard of care in cases in
which a medical practitioner is alleged to have been negligent in providing
treatment to a patient should be:

(a) A medical practitioner is not negligent if the treatment provided was in

accordance with an opinion widely held by a significant number of
respected practitioners in the field, unless the court considers that the
opinion was irrational. (Recommendation 3, 41)

In this way, the report addressed the fact that practitioners legitimately held
conflicting views about best practice. It also helped reduce confusion resulting
from erratic decision-making and allowed scrutiny of very exceptional cases that
may have been based on irrational opinion. The recommendations of the Ipp
Report were incorporated into civil liability statutes in each state and territory
(see the Appendix for a list of legislation). The wording of the New South Wales
Civil Liability Act 2002 is representative of the legislation of all states and
territories. Section 5 0 states:
134 ETHICS AND LAW FOR AUSTRALIAN NURSES

(1) 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 professional practice.
(2) However, peer professional opinion cannot be relied on for the purposes
of this section if the court considers that the opinion is irrational.
(3) The fact that there are differing peer professional opinions widely accepted
in Australia concerning a matter does not prevent any one or more (or all)
of those opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be
considered widely accepted.

Conditions for an action of negligence

When a nurse fails to provide a reasonable standard of care to a patient, and
consequently that patient suffers avoidable harm, the patient may bring a legal
action against the nurse for negligence. Negligence may be civil or criminal.
Criminal negligence concerns a situation where a practitioner acts with extreme
reckless indifference to the safety or well-being of a patient. The difference
between criminal and civil negligence is drawn where the action shows such a
great falling short of the standard to have been expected . . . showing such
serious disregard for the patient’s welfare . . . so thoroughly reprehensible,
involving such grave moral guilt, that it should be treated as a crime deserving
of punishment’ (R v Patel [2010] QSC 233 [69]).
Criminal negligence is quite rare, and cases typically attract a lot of attention
because they lead to Criminal charges, such as manslaughter, grievous bodily harm
or murder. For example, in Australia in June 2010, some years after a commission
of inquiry by the Queensland Government, Dr Jayant Patel was found guilty of four
counts of manslaughter and one of grievous bodily harm (R v Patel 2010). In the
United Kingdom in January 2000, Dr Harold Shipman, a general practitioner, was
found guilty of murdering 15 of his patients and forging the will of one of them.
A subsequent inquiry was chaired by Dame Janet Smith (Shipman Inquiry 2005).
Negligence involving nurses is usually a civil action (a tort rather than a
crime - see Chapter 3) where the nurse (and/or employer) is sued for a sum of
money as compensation for the damage the patient has suffered. Nurses can be
negligent in the diagnosis, the advice or the treatment they provide. Whether a
nurse is negligent is usually determined by the courts, but straightforward cases,
where the negligent nurse does not dispute the claim, can he settled out of court,
thereby avoiding (he expense. Lime and distress of a hearing.
Nurses can he negligent in what they do (an act) or fail to do (an omission).
In order for a nurse’s actions or omissions to be considered negligent, four
conditions must be met:

'Ihe nurse had a duty of care to the patient.

There was a breach of that duty of care.
Iiarm resulted.
The harm was foreseeable.

REFI.ECTIVE QUESTION
How might negligent;* arise from an omission by a nurse?

In any case of negligence, it mnsl: be shown that the person who performed the
negligent deed (the defendant) had a duly of care towards the person bringing
the action (the plaintiff). For example, imagine someone walking past a hospital
and seeing a nurse chase a patient on the hospital grounds. The passer-by does
not pay attention to the footpath and falls over, sustaining a concussion. If the
passer-by were Lo claim that the nurse caused his concussion and Lherelbre was
negligent, the case would not be successful because Lhe nurse had 110 duty ol
care to that passer-by. However, if a nurse takes responsibility for a patient, the
nurse has a duty of care to that patient. Responsibility for a patient might be
given directly - for example, by being directed by a manager Lo look alter the
patients in beds 1-6, or by signing a contract with a person to provide private
nursing or midwifery care. Responsibility might also be implicit - lor example, by
being rostered on in a department of emergency medicine (DEM), where the
nurse is expected to treat whoever turns up.

There is a breach of duty of care when a nurse fails to deliver care of a standard
that can reasonably be expected. For example, if a nurse in a DEM did not take at
least hourly neurological observations on a patient who had presented with
 1 3 6 ETHICS AND I AW FOR AUSTRALIAN NURSES

headache and nausea, this would constitute an inadequate standard of care.

A nurse in a palliative care unit, however, would not be expected to take neuro­
logical observations of the patients. If a nurse in a palliative care unit did not check
a patient’s skin for pressure ulcers when bathing her, this would constitute an
inadequate standard of care. Recall that different nursing roles involve different
standards of care. It is the nurse's responsibility to be aware of the standard of care
that is expected (see below for a discussion of nurses’ scope of practice).

The third condition for negligence is that harm occurs as a result of a nurse’s
failure to meet a reasonable standard of care. That is, the breach of duty of care
must result in actual harm, not simply the risk of harm, and the harm suffered by a
patient must be caused by the action or omission of the nurse and not by some
other cause. For example, if the nurse in a palliative care unit did not check the
patient’s sldn, and then later in the day the patient bumped her leg with a
wheelchair, causing a skin tear to her leg, the nurse may not be negligent. However,
if the nurse did not check the patient’s skin and, as a result, failed to find and treat
a pressure ulcer, the nurse may well be negligent. Whether harm has occurred is
typically argued in the courts; however, some harms are obvious - for example, loss
of limb, loss of bodily function, or psychological pain and suffering.

The final condition to be met in a case of negligence is that the harm incurred by
a breach of duty of care is foreseeable. In the case of the patient in the palliative
care unit, pressure ulcers are a well-known risk. The nurse in the palliative care
unit could reasonably foresee that a failure to check the patients sldn could
result in the nurse failing to identify and treat an ulcer.
Consider another case:

LAW 8
ETHICS IN Olga is a diabetic patient w ho is having regular home visits by a com m unity
I’ HACIICE nurse for saline solution dressings to her leg ulcer One day a new nurse visits
to do her dressing and finds that Olga has run out of saline solution. The nurse
finds some m ethylated spirits and decides to use this to clean the ulcer.
Is this a reasonable standard of care?
 CHAP I EM 6 DUTY OF CARE AND PROFESSIONAL NEGLIGENCE 137

It is a reasonable expectation that a registered nurse would know that

methylated spirits is not an acceptable substitution for saline solution. Regis­
tered nurses are taught a sufficient amount of pharmacology and wound care to
be able to figure this out for themselves. Olga is now at risk because the nurse
has made a decision to pursue an action that falls below a standard that can
reasonably be expected o f a registered nurse. I f the nurse continues, that risk
may become an actual harm, as outlined below.

LAW &
The nurse swabs Olga's ulcer w ith m ethylated spirits, Olga cries out in pain, ■ ETHICS IN
clutching her leg. PRACTICE

Olga has clearly suffered a minor harm insofar as she was caused pain
unnecessarily. However, dressings often involve a small degree of pain - for
example, when removing a particularly sticky Band-Aid or adhesive dressing.
That degree of pain by itself is not necessarily the kind of harm that would justify
a claim of negligence. However, the kind of harm that can result to the delicate
tissue of a leg ulcer from using a powerful chemical, such as methylated spirits,
instead of an isotonic solution, such as saline, is more significant

LAW &
The m ethylated spirits caused inflam m ation to the wound and damaged the ETHICS IN
healthy cells that had started to grow at the edges of the wound* This delayed PRACTICE
the healing process and prolonged Olga's pain and disability.

Now the four conditions for an action of negligence do seem to have been
fulfilled:

The nurse has a duty of care.

The nurse has breached that duty of care by not acting with a reasonable
standard of care.
Harm has resulted.
The harm was foreseeable. (The nurse should have known that methylated
spirits would cause damage to the wound.)

i u m x e n Y K q u e s t io n
—> A s <9 nwwly (jrndi.uyled nurse, h o w w o u ld you deiXririTiine w lr a t kinds of things ;

m ig h t harm yOur pai.inni/3?

 1 3 8 ETHICS AND LAW FOR AUSTRALIAN NURSES

Scope of practice
Nurses can fail to meet a reasonable standard of care - and be at risk of
behaving negligently - if they act outside their scope of practice. In Chapter 4,
it was noted that the need to maintain a reasonable standard of care is the
reason why nurses are reminded continually that they must work within their
scope of practice. A nurse’s scope of practice is determined by four main factors:

-> the nurse s level of training and demonstrated competence

-*> the nurse s context of practice (which includes the level of appointment at
which the nurse is employed)
~> state and Commonwealth legislation
-> the employers policy framework.

It is the nurse s responsibility to know their scope of practice.

Nurses can only deliver treatment appropriate to their level of training. For
example, a nurse without midwifery training would be practising outside their
scope of practice if they were to give pregnant women advice or treatment relating
to their pregnancy or delivery other than very general and basic health information,
Even within a group of similarly qualified nurses, there can be differences in
the level of training where specific procedures are concerned. For example,
nurses employed in a coronary care unit may be trained to insert an intravenous
cannula. However, unless a nurse has undergone the specific training for that
unit and been assessed for competency, they would be practising outside their
scope of practice if they inserted an intravenous cannula while working in the
coronary care unit.

REFLECTIVE QUESTION
-> As a n e w ly gra d u a te d nurse, w h a t w o u ld you do if a p atient asked you fo r
advice ab o ut tre a tm e n t o p tio n s fo r breast cancer?

The Australian Nursing and Midwifery Council (ANMC) developed a guide for
nurses to determine their context of practice (ANMC 2007). This guide is now
 (.1lAPllfi (i: I3UIY or CAIftANU IW.ll I RHINAL m iM U t 139

provided through the Nursing and Midwifery Board of Australia website. The
context of practice includes (but is not limited to) consideration of:

the patient's needs (which should be determined by a nursing assessment)

-> the activities that are permitted or not permitted by the organisation
employing the nurse
any professional regulations that apply to the proposed care
“> whether the nurse's employing organisation has the skill mix to enable the
provision of the required care
-* whether the nurse is the most appropriate person at Lhat organisation to
deliver the care required
-> whether the nurse has the confidence to provide the care.

Nurses can only deliver treatment appropriate to their level of appointment.

What a nurse is legally permitted to do will be informed by the statement of
duties or ‘position description’ under which the nurse is employed. Nurses are
appointed at different levels precisely in order to undertake duties that require a
specific level of expertise and responsibility. All nurses are required to work
within the bounds of their position description. So, if a nurse who has many
years’ experience in a DEM is employed in a community health centre to provide
health-promotion activities, that nurse will not normally legally be permitted to
do the kind of procedures they may have undertaken in the DEM. For example, if
the nurse was trained and experienced in venepuncture or suturing, the nurse
would not be permitted to carry out venepuncture or suturing at the community
health centre unless they were the kinds of procedure described in the nurse’s
statement of duties.
Similarly, a registered nurse employed by a nursing agency to fill casual
vacancies at different hospitals in a city would not normally be permitted to
undertake the range of procedures that permanent staff at one of those hospitals
would carry out. It is essential that nurses understand the positions they occupy
and the responsibilities an d constraints of those roles.

Legislation governing what nurses are permitted to do varies from one state or
territory to another (see the Appendix for tables of legislation). For example, the
Poisons Act in Victoria has slightly different provisions for registered nurses to
administer medications in the absence of a medical officer than does Tasmania’s
Poisons Act. There are also different mandatory reporting requirements and
1 4 0 ETHICS AN D LAW FOR AUSTRALIAN NURSES

requirements around detention under the Mental Health Acts of the different
states and territories. Practising registered nurses need to be aware of and
understand the legislative frameworks within which they practise, and any
relevant differences when they move between the different states and territories
for employment.

Each place of employment will have its own set of policies concerning what
registered nurses are permitted to do. Employers’ policies provide guidance to
staff about how they are to act in order to meet specific legislative requirements,
and national safety and quality standards. For example, each hospital in Austra­
lia is developing its own policy to implement the Open Disclosure Standard for
dealing with clinical incidents (see Chapter 10 for discussion), and health-care
services usually have guidelines for the management of patient information in
order to meet their requirements under the various Privacy Acts.
Employers will usually have policies that relate to specific activities of
registered nurses, such as what to do with patients’ belongings, how to manage
complaints and what to do about blood spills. Some policies spell out the
processes by which a registered nurse can formally be recognised as clinically
competent to carry out certain procedures, such as venepuncture or intravenous
cannulation. The process for establishing clinical competence is sometimes called
‘credentialling’. This usually involves completion of a specified training program
plus an examination of the practical and theoretical components. Credentialling
is one of the ways in which a nurse’s scope of practice can clearly be determined.
As noted in Chapter 4, a registered nurse who previously had been taught to
cannulate - and had even cannulated many times - would nevertheless be acting
outside their scope of practice if they inserted a cannula at their place of
employment without being credentialled at that p lace o f employment.
Each of the above requirements functions to ensure that nursing practice is
safe for the patient, the nurse and the employer. When nurses practise outside
their scope of practice, they place patients at risk of harm, and place themselves
and their employers at risk of an action of negligence. Nurses who work alone or
in remote locations are particularly at risk of overstepping their scope of practice.
This is because they are surrounded by fewer reminders and role models than
nurses in larger organisations - especially teaching hospitals - and remote
 Cl' IAPII H ()! D UIV OF CAHi AND PflOT [ SSIQNAl H\ HI If^NCL: 141

nurses may feel under pressure from the local community to provide extended
care. Consider the following example.

LAW 8
A registered nurse started work in a small island com m unity just o ff the
Australian mainland. The nurse had com pleted a course of study in remote
area nursing tw o years previously, but had not worked as a rem ote area nurse
or nurse practitioner So, although the nurse had a formal qualification, she lacked
relevant rem ote area nursing experience.
The nurse's current em ployer had no process in place to credential the training
the nurse had undertaken or to ensure that the skills the nurse had been taught were
kept up to date. Therefore, the em ployer refused to employ the nurse under a
classification that w ould perm it the nurse to put into practice the skills previously learned
(that is, as a remote area nurse or nurse practitioner). The nurse was employed as a
clinic nurse to deliver care at the com m unity health centre. Any patients presenting
w ho needed advanced care were to be managed by calling an ambulance or medical
retrieval service.
The nurse nevertheless considered herself to be able to provide advanced
care because of the training course she had undertaken One evening, a m em ber of the
local com m unity phoned the nurse at home and arranged to m eet her at the clinic with
her dehydrated baby. Instead of phoning an ambulance, the nurse proceeded to
adm inister intravenous fluids to the baby
How would you determ ine w hether the nurse practised w ith a reasonable standard
of care? Was she w ithin her scope of practice?

As noted above, negligence cases in health are almost always civil rather than
criminal cases. That is, an action of negligence is usually brought against a
clinician in order to receive monetary compensation (also called ‘damages1) for
the harm suffered as a result of a breach of duty of care (and not in order to
punish the clinician). Breaches of duty of care by nurses can be sorted into live
general types:

failure to follow standards of care (in relation to scope of practice)

failure to use equipment safely
failure to communicate adequately
failure to document adequately
failure to assess and monitor adequately (Croke 2003).
 1 4 2 ETHICS AND LAW FOR AUSTRALIAN NURSES

Nurses can fail to follow standards of care in a number of ways. For example,
they can simply disregard workplace policies and professional standards, such as
the Code o f Professional Conduct (NMBA 2013d) or the patient identification
standards set by the Australian Commission on Safety and Quality in Health
Care (ACSQHC 2012). A nurse may also fail to obtain medical orders for a
patient or disregard existing medical orders, or fail to obtain an adequate patient
history and consequently fail to prepare an adequate nursing care plan (Croke
2003: 57). These are just a few examples.

Nurses frequently use equipment that can be unsafe in untrained hands, such as
defibrillators, pacemakers, oxygen cylinders, heat lamps, ventilators, blood
warmers and intravenous infusion pumps. Nurses must be familiar with the
manufacturer's instructions, and understand the safety procedures associated
with equipment they use, such as safe storage, correct positioning and use of
alarms. Nurses should never modify equipment, They should also be capable of
identifying potential problems, such as signs of leakage, damage and contamin­
ation (Croke 2003: 58). In addition, nurses should be aware of the effect of
working with several pieces of equipment at once, as in the following example.

LAW &
ETHICS IN Bjorn was w orking in the Intensive Care Unit, caring for a patient w h o was
PRACTICE receiving several .different intravenous infusions, including nitroprusside, a
potent vasodilation drug that rapidly lowers blood pressure All of the drugs
w ere being infused by identical-looking pumps. Bjorn w anted to adm inister a
push dose of morphine, but accidentally pushed the nitroprusside pump,
causing the patient's blood pressure to plum m et so low that the patient had to
be resuscitated.
Can you think of another example w here a mistake could happen through
use of equipment?

Communication failures are likely to be one of the most common sources of

potential breaches of duty of care, given the central role of communication in
 CHAPII-n (■}; 1)11IY (Jl- C-ANIi AND PiuJFISi-'i'iJMAL Nhtil Bl:N(! 143

modern nursing care and the number of health professionals involved in

treatment - especially hospital-based health care. Nurses can fail Lo communi­
cate adequately by not seeking medical advice in a timely fashion, not listening to
patients’ concerns or not passing on information such as details of allergies
or pathology results. (The New South Wales Clinical Excellence Commission
has introduced the iSoBar strategy to improve communication and prevent
unexpected patient deterioration. iSoBar will be discussed in more detail in
Chapter 10.) Sometimes being inexperienced or working in an environment with
rigid attitudes can cause a nurse to disregard what the patienL is communicating.
(See Table 10.1 in Chapter 10 for some statistics about clinical incidents.)

LAW ft
Gail was working a nighi shift; nursing Barry, an eldorly patient with severe
em physema. Barry was listed as not for resuscitation. Several times during
the night, Barry buzzed the nurse and breathlessly asked her to call his
daughter in Gail tried to reassure him, and said that it was too late at night to phone and
to w ait until morning. A t 5 00 a.m. he buzzed again and Gail prom ised she w ould call at
6 00 a.m At 5.30 a.m., Barry died

This is an extension of the failure to communicate adequately. Inadequate

documentation can include such things as failure to record administration of
medications or fluids, failure to report an adverse drug reaction or failure to report
equipment malfunction. In general, any failure of documentation that is needed as
part of direct patient care has the potential to result in harm to the patient.
Documentation and information management are discussed in Chapter 8.

r e f l e c t i v e q u e s t io n
As a nfiwly graduated nurse, how would you find olii the tevefJ of
documentation exp^ycted of you?

All of the above types of failure can lead to failures to adequately assess and
monitor patients. In a busy workplace, a nurse’s attention can be pulled in many
144 ETHICS AND LAW FOR AUSTRALIAN NURSES

competing directions: to different patients, relatives, other nurses, doctors,

friends, seminars, training events and so on. Consequently, the quality of atten­
tion to the patient’s condition and needs can suffer. Lack of knowledge and
experience can also result in a nurse failing to recognise a serious risk or
deterioration in a patient. The ACSQHC notes that research consistently shows
that, despite the fact that there are clear, observable physiological signs that
precede an adverse event, such as cardiac arrest, warning signs sometimes go
unnoticed - or, if they are noticed, such signs are not always acted upon
(ACSQHC 2010: 3). Consequently, a National Consensus Statement has been
developed to embed practices that will prevent the unnoticed deterioration of
the patient. The statement has eight essential elements’ of recognising and
responding to clinical deterioration. They are:

-> measurement and documentation of observations

-> escalation of care
rapid response systems
clinical communication
-4 organisational supports
-4 education
evaluation, audit and feedback
technological systems and solutions.

These processes are being implemented across Australia and can be found in
programs such as the NSW Clinical Excellence Commission’s (2016) program,
Between the Flags (see also Chapter 10).

Proof of negligence
If a nurse becomes the subject of a civil action of negligence, the person bringing
the action (the plaintiff) must prove each element of the definition of negligence,
namely that:

-* the nurse had a duty of care

-> the nurse failed in that duty by not providing care of a reasonable standard
the failure resulted in harm to the patient, and
the harm was foreseeable.

The plaintiff must provide evidence to prove each of these points. Unlike the
standard of proof in a criminal case, which is ‘beyond reasonable doubt’, the
 CI-IANI-n n L)UIY OF UARt AND I’ftQI tSSlONAL Nl-dl nil N(;f 145

standard of evidence in a civil case is Lhe less stringent concept of ‘on the
balance of probabilities’ (Forrester & Griffiths 20.10: 38). The plaintiff needs to
provide evidence to show that it is more likely than not that the harm incurred
was the result of an inadequacy of the nurse’s standard of care (an act or
omission), and that the harm was foreseeable - in other words, the nurse should
have known that the act or omission would result in this harm, and so had a
duty to avoid it. Furthermore, if a plaintiff claims that they would not have
consented to treatment if they had been aware of the risk of harm, then this also
needs to be proven.

An oncology patient sustained a perforated bowel while undergoing an

investigative endoscopy. Consequently, she took an action for negligence, PRACTICE
claiming that she had not been warned about this possible complication. The
court found that she had been given sufficient warning, and noted that her fear of cancer
was such that she w ould have had the procedure in any case (Berger \/ Mutton,
unreported, NSW District Court, 22 November 1994, cited in Beran 2006)-

There are a number of strategies available to a health professional defending

an action of negligence. Consistent with points in the previous section, the
defendant would try to do one of the following (Forrester & Griffiths 2 0 10:
I 16-18):

disprove a duty of care existed

prove that their practice was of a reasonable standard
disprove that any damage was suffered as a result
prove that the harm (if any) was not foreseeable.

To do so, they would need to:

-> show that the plaintiff contributed to their own injuries (called contributory
negligence’)
demonstrate that the patient undertook a voluntary assumption of risk
-> prove that the legal action had been initiated too late after the injury
show that legal liability was not the defendant’s alone, but was shared with
another party, such as the employer.
146 ETHICS AND [Ml FOR AUSTRALIAN NURSES

Contributory negligence refers to a situation where a person contributes to the

harm that they incur through a negligent act or omission:

The test of whether a person (the plaintiff) has been contributorily negligent
is whether a reasonable person in the plaintiff s position would have taken
precautions against the risk of harm to himself or herself.
(Ipp 2002: 12)

For example, if a person has been advised to fast before surgery and then
knowingly drinks a cup of coffee or eats a snack without telling anyone, that
person has contributed to a set of circumstances that may result in them
incurring harm when they are administered an anaesthetic. Even if the nurse
at the operating theatre was negligent by failing to check the time of the person’s
last oral intake, the person may contribute to the harm arising from that
negligence by failing to take reasonable precautions.

A voluntary assumption of risk refers to a situation where a person pursues a

course of action in full comprehension of the nature and the likelihood of its risks,
and in full understanding of all advice. However, its applicability to medical and
nursing care is questionable since patients do not normally decide of their own
volition to enter hospital or undergo treatments. Normally, treatment is a matter of
health need rather than mere choice or preference (Forrester & Griffiths 2010:118).

Action that is initiated too late a fte r the injury

All states and territories have legal limitations on the length of time that can pass
before a legal action can be commenced - usually three to six years. If, after six
years (or six years from reaching 18 years of age in the case of people who suffered
harm as minors), no legal action has commenced, none can commence without
special discretionary permission from the court (Forrester & Griffiths 2010: 118).

Vicarious liability
When a tort of negligence is proven, the negligent party is liable to pay compen­
sation for damages done to the plaintiff. The amount of damages is decided by
 CHAPTER 6; DUTY OF CARE AND PROFESSIONAL NEGLIGENCE 147

the court (unless settled by mutual agreement out of court). Most, but not all,
nurses are protected from paying damages by the principle of vicarious liability.
Vicarious liability refers to the situation where the employer bears the financial
responsibility for compensation of harm if employees are negligent in the course
of carrying out their duties. In other words, vicarious liability is a transfer of
financial liability from the nurse to the nurse’s employer. Vicarious liability refers
only to the fin an cial compensation accompanying a finding of negligence, and
does not absolve the nurse from being actually negligent.
Vicarious liability is a common law principle - that is, it is not a rule written
in an Act of parliament (as statutory law is) but rather a principle embodied in
legal judgments over time. The principle transfers the burden of paying compen­
sation from the individual, who has very limited capacity to pay, to the employer,
who is deemed to have far greater capacity to pay.2
Vicarious liability can apply only to people formally classed as employees,
and not those with other kinds of contractual relations with the organisation
(Forrester & Griffiths 2010: 119). For example, a public hospital has nurses who
are employees, but there may be other people working on the grounds of the
hospital who are independent contractors, such as a signwriter who has a
contract with the hospital. The signwriter is not covered by the hospital’s
vicarious liability.
In an action of negligence, the court decides whether or not any person who
may have caused harm to a patient is an employee. This determination is made
by legal analysis of the relationship between the person and the organisation. If
the person is not deemed an employee, then that person is not covered by the
organisation’s vicarious liability, and will personally be liable to pay for any
damages. For example, if the signwriter failed to secure their bucket of paint,
and as a result it dropped on the head of a patient passing by, causing damage to
the patient’s eye, the signwriter would be negligent and liable for payment of
compensation for damages, unless they could prove they were actually an
employee of the hospital. So the first test of whether vicarious liability is
applicable is to ascertain whether the person found negligible is an employee.
Vicarious liability prevails only when an employee, in the course of their duties,
negligently harms a patient (or any person to whom the organisation has a duty
of care).
The second requirement for determining that vicarious liability applies is to
show that the negligence occurred during the course of the employee’s duties.
For example, if a nurse employed in a surgical ward at a hospital failed to check a
 1 4 8 ETHICS AND LAW FOR AUSTRALIAN NURSES

prescribed intravenous medication properly and administered the wrong drug,

causing the patient to suffer damage to their kidneys, the nurse would be
negligent, and the hospital would be vicariously liable. Consider the following.

LAW 8
ETHICS IN A nurse lived in the same street as the hospital of which he was an employee.
PRACTICE in the course of cutting down a tree at home, he caused a branch to fall on a
patient w ho was out for a walk, resulting in the patient falling and breaking
her w rist
Is the nurse covered by the hospital's vicarious liability?

The harm - the broken wrist - was not caused in the course of the nurse’s
duties, but instead was the result of activities that were outside the scope of the
nurse’s employment; therefore the hospital is not vicariously liable (Forrester &
Griffiths 2010: 119).
There are a number of tests that the court will apply in an effort to determine
whether the negligent activity has occurred in the course of employment
(Stuhmcke 2001: 158-60):
1. control test
2 part and parcel of the organisation test
3. multiple test.
No single test is sufficient to establish this conclusively, but several consider­
ations may be taken together. The first is the control test’, which concerns the
question of whether the employer has the legal authority to control the nurse.
An employer is deemed to have control where the employer has the legal right to
direct the nurse as to the time, location, type and manner of work to be done.
Significantly, the employer does not have to be able to directly control the highly
complex and specialised tasks that the nurse might carry out. However, many
employers normally have detailed guidelines and policies around nursing
procedures.
The second test is the part and parcel of the organisation test’ (Stuhmcke
2001: 160). On this test, a person is deemed to be an employee if they can be
shown to form part of the organisation. This may be demonstrated through the
fact that the person uses the organisation’s guidelines, forms, stationery, equip­
ment and vehicles, and follows the organisation’s routines. The signwriter above,
for example, is not part and parcel of a hospital’s normal business, whereas a
surgical ward nurse clearly is. Some cases will be more difficult to determine,
 CllAPl'fiR 6! DLJIY OF CARl: AMD Pflflfl&SIONAl NmLlt.m:: 149

such as contractors who provide maintenance for office equipment; security

guards who monitor the car park, corridors and emergency department; or
gardeners who maintain the hospital garden beds.
The test may raise issues for nurses under certain employment contracts.
For example, nurses engaged by an agency to work in a hospital are usually
employed by the hospital, not the agency. The role of the agency is essentially
to recruit nurses to the hospitals casual pool, in return for which the agency is
paid a commission. However, the situation is very different where an agency
engages a nurse to work in a private home. In this case, the nurse is essentially
self-employed, and will bear the burden of financial liability; such a nurse
would therefore require professional indemnity insurance (see below). The
same pertains to privately practising midwives and nurses, who are clearly
self-employed.
The final test for employee status is the ‘multiple test’ (Forrester & Griffiths
2010: 121). Here, the court considers a number of factors that, taken together,
demonstrate that a person and the persons activities constitute a situation of
employment. These include:

payment of sick leave

? payment of superannuation contributions
tax deducted from monies prior to payment to the person
provision of plant and equipment for use in the course of duties.

P r o t e s s i o n a ! I n d e m n it y
With the enactment of the Health Practitioner Regulation National Law and the
creation of the Australian Health Practitioner Regulation Agency (AHPRA) in
2010, nurses and midwives are now not permitted to practise unless they are
covered by professional indemnity insurance. Sec Lion 129 of the National Law
states:

(1) A registered health practitioner must not practise the health profession
in which the practitioner is registered unless appropriate professional
indemnity insurance arrangements are in force in relation to the practition­
er’s practice of the profession.
[andj
(3) A registered health practitioner must not, without reasonable excuse,
fail to comply with a written notice given to the practitioner under
subsection (2),
1 5 0 ETHICS AND LAW FOR AUSTRALIAN NURSES

It also notes that:

(4) A contravention of subsection (1) or (3) by a registered health practi­

tioner does not constitute an offence but may constitute behaviour for
which health, conduct or performance action may be taken.

In other words, while it is not an offence to practise without insurance, to do so

may expose the nurse or midwife to disciplinary action, such as a charge of
unprofessional conduct. If a nurse without insurance (or extensive personal
assets) was to be found liable for a substantial sum of damages, the nurse could
not compensate the plaintiff, and the plaintiff would simply be left damaged to
manage as best they could. That could be a tragedy for all involved.
Nurses who are employed by large hospitals and health-care organisations,
government agencies or other reputable organisations will normally be covered
by vicarious liability. However, other practising nurses may be required to take
out professional indemnity insurance. In any case, it is now incumbent upon
every nurse to establish that they have the appropriate indemnity insurance
protection. Advice on insurance is provided by AHPRA, the Australian Nursing
Federation, state and territory industrial unions and the Australian Primary
Health Care Nurses Association, among others.

Tips for avoiding negligence when

delivering nursing care
Be insured. (You may need to check with your employer/agent.)
* Communicate regularly and clearly with colleagues, patients and visitors.
Do not be tempted^to cut corners when under time pressure or with patients
who are not mentally competent.
Know your scope of practice and stick to it.
Use the NMBA Decision-Making Framework (NMBA 2016b).
Always assess each patient individually, and take individual circumstances
into account.
Understand what actions constitute the standard of care you are required to
provide.
Know what you are being asked to do and whether you are competent to
do it.
Do not deliver treatment unsupervised if you are not confident to do so.
Clarify nursing or medical orders if you are unsure.
 CIIAPICR 6 DUIY 01' CARl" AND PR0 F_SSI0 NAI. NR.il IG liN d 151

Always ask for help if you are unsure of anything.

-4 Understand what actions constitute a breach of standard of care.
Be aware of risks associated with treatment you are going to provide, and
have a risk management plan.

Employers' negligence of staff

Employers can also be held liable for negligence to their staff. The same condi­
tions for negligence apply in the employer-employee relationship, as employers
have a duty of care to their employees. In some workplaces, people who have
organisational responsibility for the workplace welfare of others are officially
referred to as responsible persons’, with responsibility for such things as
rostering, allocation of duties, approving leave, approving promotions and so
on. They are people such as managers, nurse unit managers, directors of nursing
and heads of department. Where an employer or responsible person fails to
provide a reasonable standard of care in the allocation of duties to an employee,
they may be found negligent. Negligence may include such things as failing to
provide a safe workplace (through lack of security, unsafe or inadequate equip­
ment, lack of infection control or inadequate staffing levels), failing to respond to
bullying and harassment, or failing to pay award wages.
In Victoria in May 2010, a former residential care worker was awarded more
than $400 000 in compensation after a jury found that his employer was negli­
gent by not satisfying its contractual obligations to provide him with a safe
working environment and adequate support The former employee was sub­
jected to physical and verbal assaults from the adolescents in his care. He was
also encouraged to take a young person home in order to introduce him to a
normal family. However, this resulted in the young person threatening the man’s
family (Slater & Gordon 2010).

Conclusion
Nursing is a highly regulated practice because patients are vulnerable and nurses
are powerful. Understanding and sticking to a nursing scope and context of
practice can provide legal and moral protection for both patients and nurses.
Taking care to avoid negligence is not just about keeping out of trouble; it is also
about professional and personal self-respect. It is about nurses having high
standards and living up to them.
152 ETHICS AND LAW FOR AUSTRALIAN NURSES

Learning exercises
\ What is a duty of care?
6,2 Name the four conditions that must be fulfilled for negligence to have
occurred.
6*3 What does scope of practice’ mean?
How is a nurse’s scope of practice determined?
S.t' When does vicarious liability apply to a nurse’s actions?
3.6 What is professional indemnity?

Further reading
Hunter, S. 2000, ‘Determination of moral
negligence in the context of the
undermedication of pain by nurses’,
Nursing Ethics, vol. 7, no. 5,
pp. 379-91.
Johnstone, M.-J. 1994, Nursing and the
injustices o f the law, W.B. Saunders/
Balliere Tindall, Sydney.
Nursing and Midwifery Board of Australia
2016, ‘Frameworks’,
www.nursingmidwiferyboard.gov.au/
Codes-Guidelines-Statements/
Frameworks.aspx.
Savage, P. 2016, Legal issues for nursing
students: applied principles, 3rd edn,
Pearson Education, Sydney.
Shipman Inquiry 2005, Reports 1-6,
viewed 5 February 2011,
www.the-shipman-inquiry.org.uk/
reports.asp.
Wheeler, H. 2012, Law, ethics and
professional issues fo r nursing: a
reflective portfolio building approach,
Routledge, Oxford.
Cases cited
Berger v Mutton, unreported, NSW District
Court, 22 November 1994.
Bolam v Friern Hospital Management
Committee [1957] 2 All ER 118; [1957] 1
WLR 582.
Donoghue v Stevenson (1932) SC (HL) 31.
R v Patel [2010] QSC 233 (09/0387).
Shaddock & Associates v Parramatta City
Council (1981) 150 CLR 225 at 248-9.

P
Notes
In this case, John Bolam (the plaintiff) was administered electroconvulsive
therapy for his mental illness at a hospital in the United Kingdom. During
treatment, he sustained some fractures. He consequently sued the doctor on
the basis that the treatment had been administered incorrectly and he had
not been informed of the risks. The case was unsuccessful, and in his
judgment McNair J made three significant points. First, a doctor is not
negligent if they act consistently with practice deemed to be accepted by a
responsible body of doctors skilled in that area. Second, a doctor need not
disclose to a patient dangers that the doctor believes are minimal. Finally,
Ih e o n u s is on th e p la in t if f (o s h o w b o th th a t ['.lie h a rm w as n e g lig e n t a nd

IhaL Ih e p la in t i f f w o u ld n o l have c o n s e n te d had th e y been w a rn e d .

I interestin gly, J o h n s t o n e (J994: 2 4 7 - 5 0 ) argues l.liat th e re is a h is t o ric a l
co n n e c tio n betw een the s u b s e rv ie n t s t a t u s o f n u rs e s (in eonl.ni.sl lo Ihe

p ro fe s s io n a l s ta tu s o f d o c l o r s ) a n d I h e ir p i'o le c ti o n b y v ic a r io u s lia b ility .