L2 Handout NURS2035 24S1 PDF

2/18/24 Law and ethics 1 WELCOME Darren Conlon, Sydney Campus E u n i c e Ta n , F r e ma n t l e a n d B r o o me C a mp u s e s School of Nursi ng and Mi dwi fery 2 ACKNOWLEDGEMENT OF COUNTRY The University of Notre Dame Australia is proud to acknowledge the traditional owners and custodians of th...

2/18/24 Law and ethics 1 WELCOME Darren Conlon, Sydney Campus E u n i c e Ta n , F r e ma n t l e a n d B r o o me C a mp u s e s School of Nursi ng and Mi dwi fery 2 ACKNOWLEDGEMENT OF COUNTRY The University of Notre Dame Australia is proud to acknowledge the traditional owners and custodians of this land upon which our University sits. The University acknowledges that the Fremantle Campus is located on Wadjuk Country, the Broome Campus on Yawuru Country and the Sydney Campus on Cadigal Country. 3 1 2/18/24 Objectives By the end of this lecture, you will be familiar with: q Duty of care q Statutory/Professional Negligence & Chain of Causation q Non-delegable duty of care q Vicarious liability 4 Negligence 5 Tort Tort q A tort is defined as a civil wrong made against a person or property q A wrongful act or an infringement of a right leading to legal liability q If a tort requires multiple factors (‘limbs’, ‘steps’, ‘elements’ or ‘criteria’) to be proved then failure to prove one ‘limb’ means the tort cannot be proved 6 2 2/18/24 Tort v crime Tort v crime A tort is a type of civil law action where an individual suffers a wrong or injury (such as personal injuries from an accident) the courts may assist that person to obtain redress or compensation A crime is a wrong committed against the community (robbery or murder) and the courts will determine a proper punishment for that the guilty person – that is the criminal law Criminal law is public law, tort law is (generally) private law 7 Negligence Negligence is q A failure to exercise reasonable care and skill q Involves carelessness not intentional harm 8 Negligence Negligence q “The core idea of negligence is that people should exercise reasonable care when they act by taking account of the potential that they might foreseeably cause harm to other people” q Do not be careless 9 3 2/18/24 Tort of negligence Negligence q The tort of Negligence arises where a person has suffered an injury to self or property as a result of another’s act or omission which fell below an expected standard of care q Example: Tort of negligent advice –is therefore more than just being wrong 10 The elements of Statutory/Professional Negligence Negligence q Duty of Care q Breach of that duty q Injury or damage resulting from that breach q The injury/damage was foreseeable 11 Causation Causation q A successful claim for damages requires a causal link between the breach of duty and damage suffered 12 4 2/18/24 Duty of care Duty of care q A duty to take reasonable care to ensure that a nurse’s acts or omissions do not cause reasonably foreseeable harm to others q It is a requirement to provide the minimum expected standard of a registered nurse 13 Duty of care How is professional duty of care measured? q A professional must act in a manner that at the time the service was provided, was widely accepted in Australia by peer professional opinion as being competent professional practice q The opinion which is relied upon cannot be irrationally held. So just because it is an accepted standard does not mean the Court will find it acceptable q The practice does not have to be universally accepted by peers just widely accepted 14 Duty of care To whom is a duty of care owed? q The neighbour principle q Persons who are so closely and directly affected by my act or omission that I ought reasonably have had them in contemplation as being so affected when I was directing my mind to the acts or omissions which are called in question q For a nurse that includes your patients, and others 15 5 2/18/24 Duty of care When does the duty commence? q The duty can commence before the treatment starts. For example when a patient presents to ED but leaves before being seen 16 Duty of care When does the duty end? q The duty ends when all acts have been completed and have been reasonable 17 Duty of care Duty of care in mental health q You owe a duty to third parties who may be injured by mentally ill patients who are negligently treated 18 6 2/18/24 Breach of duty Assessing a breach of duty of care q What is the minimum reasonable standard of care expected by a person from the nurse? q How different or far away from that minimum standard was the care that was delivered? 19 Damage or injury Assessing damage from a breach of duty of care q Harm resulting from a breach includes personal injury or death, damage to property and economic loss q Personal injury includes pre-natal injury, physical or mental impairment and diseases q Can have pure mental harm or psychiatric injury q Damage includes pain and suffering, loss of enjoyment of life, loss of expectation of life, loss of opportunity in life and financial damage q Death includes funeral costs, loss of services and loss of financial support from the deceased 20 Foreseeability Assessing foreseeability of damage or injury q A person is not negligent in failing to take precautions unless the risk was foreseeable, significant and a reasonable person in that position would have taken those precautions q When considering whether a reasonable person would have taken precautions you need to consider: q the probability and seriousness of harm if precautions are not taken q the burden of taking the precautions q the social utility of the activity that creates the harm 21 7 2/18/24 Causation Causation q A successful claim for damages requires a causal link between the breach of duty and damage suffered q The negligence to be a necessary condition of the occurrence of the harm (factual causation) as well as a requirement that a person’s liability be extended to the harm caused (scope of liability) q You need to take into account what the patient would have done if the negligence did not occur 22 Defences to negligence Defences to negligence q Good Samaritan, assistance in an emergency q Volunteer carrying out work for a community organsation q Outright denial – not my fault q Contributory negligence q Failure by injured party to mitigate/reduce losses 23 Defences to negligence Defences to negligence q A second negligent act results in increased harm q The plaintiff has knowledge of the risks and voluntarily undertakes those risks, voluntary assumption of risk q Criminal activity by the complainant q Consumption of alcohol or drugs by the complainant 24 8 2/18/24 Remedies to negligence Remedy for damage caused by negligence q The remedy for negligence with damage/injury, as with any tort, is damages (usually money) q In certain limited instances a Court may q issue a direction to act q or grant an injunction q But only if damages will not suffice 25 Good Samaritan Principle 26 Good Samaritan Principle Good Samaritan q The good Samaritan principle protects a rescuer from legal liability if they come to the aid of a person in need q The rescuer is usually protected from unforeseen consequences of their actions 27 9 2/18/24 Good Samaritan Principle Good Samaritan q The rescuer is not protected from acts that are reckless q For example: attempting to save someone whilst drunk and causing further injury to the person 28 Good Samaritan Principle Good Samaritan q A rescuer is generally not legally obliged to come to a person’s aid q However, there is a moral obligation to help q There is also a public interest in coming to the aid of people in need 29 Good Samaritan Principle Good Samaritan q A nurse is not legally obliged to render assistance q But if the nurse does, they are held to the same standard as any other rescuer 30 10 2/18/24 Good Samaritan Principle Good Samaritan q However, a nurse is not legally obliged to identify themselves as a nurse, if they render aid, and will not be held to the higher standard. q But if the nurse does identify their status as a nurse, they are held to the higher standard (higher duty of care) because they have identified themselves as a person with greater knowledge and skills than the general public 31 Good Samaritan Principle Good Samaritan q Case law suggests that, unlike nurses, a doctor is obliged to: q Identify themselves as a doctor, and q Render aid where it is safe for them to do so 32 Vicarious liability and non-delegable duty of care 33 11 2/18/24 Employee Definition of employee q Not an independent contractor q Someone that is directed by the employer as to what to do, how to do it and when to do it q Are they part of the organisation in that the organisation co-ordinates when and what work is performed? 34 Employee Definition of employee q Ordinarily an employee is paid a regular wage with tax being deducted, they have paid leave entitlements and the tools of the trade are provided by the employer 35 Employee Definition of employee q The critical element is ‘course of employment’ q Basically, a broad definition and includes both authorised and unauthorised acts as long as reasonably within the scope of the employee’s duties 36 12 2/18/24 Vicarious liability Vicarious liability q Vicarious liability (for our purposes) makes the employer liable for the torts (for example negligence) of an employee, although without any blame or fault q The tort must be committed during the course of employment q An independent contractor is not an employee 37 Vicarious liability Vicarious liability q When a nurse commits an act of negligence and the patient is entitled to compensation, is the nurse personally liable? 38 Vicarious liability Vicarious liability q The law of vicarious liability states that an employer will be held liable for any damage suffered by a person as a result of the negligence of its employees arising out of or in the course of their employment q The employer will be liable to pay any damages in such cases q The employer is in a better financial position that individual employees to meet such liabilities 39 13 2/18/24 Vicarious liability Vicarious liability q Does not negate the nurse’s personal liability but shifts the issue of compensation to the employer (exception, criminal acts) q In NSW employers are prevented from seeking a recovery from employees where they have been found vicariously liable for the employee’s negligence 40 Vicarious liability v non-delegable duty Vicarious liability q Vicarious liability arises in circumstances “when the law holds one person responsible for the misconduct of another, although he is himself free from blameworthiness or fault” Versus q Non-delegable duty q Non-delegable duty of care: A duty of care imposed on the healthcare employer 41 Non-delegable duty Non-delegable duty of care q Example: A hospital cannot be excused from liability even if they have met their duty of care to made sure that reasonable care is exercised in entrusting responsibility to another person 42 14 2/18/24 Non-delegable duty Non-delegable duty of care q It is a Duty of Care owed towards a group of people which cannot be assigned to someone else q It is a duty to ensure reasonable care is taken 43 Non-delegable duty Non-delegable duty of care q A hospital owes a duty of care when a patient presents for care q The duty includes such things as a safe environment, competent staff, appropriate records, and functional equipment q A breach of duty by the health care facility will not arise because of a breach of its employees, but because the facility breached the duty q A hospital will be directly liable for even if there is a negligent performance by an employee 44 Non-delegable duty Non-delegable duty of care q The hospital manages its risk by developing policies and procedures for the different classes of healthcare workers q Proving that a non-delegable Duty of Care has been breached (or not) will be determined by the same test that is used to determine if an employer is vicariously liable for its employees acts 45 15 2/18/24 Unsatisfactory Conduct and Professional Misconduct 46 Code of conduct for nurses Professional conduct q “Professional conduct refers to the manner in which a person behaves while acting in a professional capacity” q “Professionals will uphold exemplary standards of conduct … not generally expected of lay people or the ordinary person in the street.” 47 Unsatisfactory professional conduct Unsatisfactory professional conduct q Unsatisfactory professional conduct of a registered health practitioner - the knowledge, skill or judgment possessed, or care exercised, in practice is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience q It includes conduct of a lesser standard than what is reasonably expected by the public or professional peers. 48 16 2/18/24 Unsatisfactory professional conduct Examples of unsatisfactory professional conduct q A contravention of an applicable law or regulation or a conviction under a law q A contravention by the practitioner of a condition on their registration, or an undertaking given to a National Board, or an order given by the Tribunal 49 Unsatisfactory professional conduct Examples of unsatisfactory professional conduct q Receiving a benefit for recommending a specific care giver or procedure q Paying a benefit to someone to recommend a specific care giver or procedure q Over-servicing 50 Professional misconduct Professional misconduct is a good example of how the law differs in structure between different states, but still has the same impacts when applied to nurse practice 51 17 2/18/24 Professional misconduct Professional misconduct in NSW q (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration; or q (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration 52 Professional misconduct Professional misconduct in WA q (a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and q (b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and q (c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession. 53 Professional misconduct Professional misconduct q Professional misconduct includes conduct by a health practitioner that is substantially below the expected standard and which, whether connected to practice or not, is inconsistent with being a fit and proper person to be registered in the profession. 54 18 2/18/24 Questions Please bring any questions you have about this lecture to your weekly tutorial 55 References Barker, K., Cane, P., Lunney, M., & Trindade, F. (2011). The Law of torts in Australia, (5th ed). Oxford University Press, Australia and New Zealand. Briginshaw v Briginshaw HCA 34. BT V Oei NSWSC 1080. Civil Liability Act 2002 (NSW). Donoghue v Stevenson HOL 100. Sherry v Australasian Conference Association (t/as Sydney Adventist Hospital) NSWSC 75. Staunton, P.J., & Chiarella, M. (2020). Law for nurses and midwives (9th ed.). Elsevier. Waller v James NSWCA 497. Watson v Marshall and Cade (1971) 124 CLR 621. 56 57 19