Nurse Clinics 2016 Annual Conference Hallam Conference ... · Nurse Clinics 2016 Annual Conference...
Transcript of Nurse Clinics 2016 Annual Conference Hallam Conference ... · Nurse Clinics 2016 Annual Conference...
Nurse Clinics 2016 Annual
Conference
Hallam Conference Centre, London
Roz Hooper Principal Legal Officer
Legal Services
Royal College of Nursing
Nurse Clinics: To cover…
Accountability:
employment/regulation/clinical
negligence
Consent and capacity
Case studies
Overlapping regimes
Employment contract may restrict
activities (disciplinaries and dismissals)
Regulator (NMC) stipulates standards
(restrictions on the register or removal)
Tort law: Clinical negligence/Personal
Injury: Injured patients can seek
compensation
Who owes a duty of care? • Is it reasonably foreseeable that someone could
be affected by your actions?
• Relevance of contract of employment in defining
scope of your duty of care
• Duty of care to colleagues and non-patients?
• Can more than one ‘person’ be in breach of a
duty to care to the same patient in relation to the
same incident?
Delegation
Sufficiently expert (how do you know?)
Sufficiently supervised
Professional (or clinical) negligence
• Duty of care
• Breach
• Damage
Standard of care
Ordinarily competent practitioner in that
particular field (Bolam)
• Common practice
• Innovative treatment
• Keeping up to date
• Specialist
• Inexperience
• Documentation
Summary
• The law generally doesn’t prescribe who must
undertake the majority of health care procedures
• It is concerned with the appropriate standard of care,
as reflected in common practice, i.e. that which is
acceptable to a responsible and relevant body of
professional nursing/medical etc opinion
• If you have the knowledge, skills and experience to
perform that task or role to the requisite standard,
then there should be nothing to stop you doing so
Relevance of indemnity arrangements?
• What is vicarious liability?
• Changes to the RCN indemnity scheme: 1 July 14
• Requirement for Professional Indemnity Insurance (PII) cover at NMC: July 2014
Elements of a valid consent
(common law)
• Legally competent
• Suitably informed
• Freely given
• Fundamental principle: right to consent or
refuse treatment
Montgomery principles 2015
1. Discuss the risks and benefits of the
proposed treatment
2. Discuss the available alternatives
3. Discuss the risks and benefits of the
alternatives
4. Be mindful of the patient’s individuality
Who is competent?
• Age of capacity – presumed to be competent once 16 years – Family Law Reform Act 1969 (MCA applies to 16+)
• Under 16 years? Gillick v West Norfolk and Wisbech AHA (1985) - (Fraser guidelines) ‘sufficient understanding and intelligence to understand fully what is involved’
• Child/young person withholding consent (under 18 years)
Parental responsibility
• Right to consent to treatment on behalf of child provided in interests of child (not absolute – inappropriate treatment; refusal not in child’s interest)
• Statutory right of access to health records but if child capable, must consent
Mental Capacity Act: Five statutory
principles
• Assume capacity unless it is established
capacity lacking
• Take all practicable steps to help a person
make a decision
• An unwise decision does not alone indicate
lack of capacity
• Any action/decision under the Act for or on
behalf of a person who lacks capacity must
be done in his best interests
• And done in the least restrictive way
Capacity
• Presumption of capacity (over 16)
• Does an impairment of the mind mean that
the person is unable to make the decision at
the time it needs to be made?
• Who assesses? Person who is directly
concerned with the individual at the time the
decision needs to be made
• Reasonable belief of lack of capacity
Determining capacity test
• Understand treatment information (nature, purpose, consequences of)
• Retain treatment information
• Use or weigh it in the balance to arrive at a decision
• Able to communicate their decision
Best interests and the MCA 2005
• Not defined
• Checklist of common factors that must always
be considered:
• Encourage participation; identify all relevant
circumstances; find out person’s views; avoid
discrimination; assess whether person might
regain capacity; life-sustaining treatment
safeguards; consult others; avoid restricting
person’s rights
• Exceptions: prior advance decision
Case Study 1
Wound care: Diabetic leg ulcer
Dressed at patient’s home
Nurse records the relevant treatment
Wound deteriorates… leg amputated
What will the court
examine?
Case study 2
Child visits clinic with fever, no rash
Nurse records checks
Nurse verbally informs parent to return if
condition fails to improve
Child develops meningitis
How could risk of accusations of
negligence be reduced?
Case study 3
Patient severe allergic reaction
Nurse seeks advice from doctor who
won’t examine and advises antibiotics
Nurse accused of failure to
escalate/seek admission to hospital
What could be the focus here?
What is the main lesson?
Case study 4
Nurse prescriber gives vaccination
Patient develops side effects
No record of advice given about side
effects
How do you record consent discussions
to avoid criticism?