B71P02 - Foundations in EBP

Introduction to Healthcare Law and EBP

Achievement of practice outcomes and portfolio work Outcome 1.4.1

Identify key issues in relevant legislation relating to mental health, children, data protection, moving and handling, health and safety etc……

Law and Evidence Based PracticeEBP is about …

...doing the right thing for patients

…using guidelines, information, research, clinical experience, and patient wishes/ experiences in order to ensure best practice

…making sure practice is up to date

…being able to account for your actions

So how are EBP and the law connected?

Well....in 2 main ways. The first considers the use of law as evidence for practice whilst the second considers how the absence of evidence may result in an infringement of the law.

1) The law as ‘evidence’

There are laws governing specific areas of health care practice e.g. Manual Handling Regulations (1993), The Medicines Act (1968), The Mental Capacity Act (2005)

So doing the ‘right thing’ for patients might mean following the details of these laws

You can justify or explain your actions by saying that you are following the law

The law is the ‘evidence’

1) The law as ‘evidence’

‘’You must always act lawfully, whether those laws relate to your professional practice or personal life’’ (NMC Code of Conduct, 2008)

‘’You must adhere to the laws of the country in which you are practising’’ (NMC Code of Conduct, 2008)

There is thus a professional obligation to act lawfully at all times.

2) EBP and ‘breaking the law’ If nurses do not use up to date

information, research, evidence to support their practice then they may be carrying out substandard or dangerous practice

Substandard or dangerous practice could have legal implications – for example the nurse could be sued by the patient for the damages caused by negligence

A Claim for Negligence

For this to be successful the claimant must establish a number of facts

1) A duty of care existed 2) There was a breach in the standard

of care 3) Reasonably foreseeable harm was

caused 4) There was a clear chain of causation

between the negligent act and the harm

Vicarious liability – means your employer might be sued for your mistakes

Employers are responsible for the actions / faults of their employees

To be successful claimants have to establish that an employee had been negligent and; that the person was actually employed that the employee was acting in the course

of their employment

Law and consent

See Open Learn – Learning Space at: http://openlearn.open.ac.uk/mod/resource/view.php?id=189908

See NMC Guidance at:http://www.nmc-uk.org/aFrameDisplay.aspx?

DocumentID=4710

Law and consent

The basic rule underpinning law and consent : competent adults have a right to determine what is

done to their bodies.

People who break this rule (for instance by assaulting others) are sometimes prosecuted under the criminal law.

Health care professionals are rarely prosecuted under criminal law but if they ‘touch’ patients without consent they are more likely to be involved in civil actions.

Patients may sue them for compensation for either: Battery, or: negligence.

Law and consent

Battery and Consent

Battery is any physical contact without consent. It need not be violent; the wrong lies not in any injury caused but in the contact itself.

Law and consent

Negligence and consent

A patient agrees to care / treatment but has not been given all the information about the advantages / disadvantages / risks of the care / treatment

The care / treatment was carried out skilfully – there were no errors or mistakes…….but the patient is unlucky and suffers from one of the known side effects / risks.She may be able to sue for negligence because she was not fully informed about the risks

In this case the negligence is in the information giving – not in the care / treatment itself

Law and consent

Every adult must be presumed to have mental capacity to consent or refuse treatment (or care) unless they are:

Unable to take in or retain information provided about their treatment or care

Unable to understand the information provided

Unable to weigh up the information as part of the decision making process

The law and consent

To be valid consent must:

Be given by a competent person

Be given voluntarily

Be informed

Another person cannot give consent for an adult patient who has the capacity to consent.

Health and Safety Law

HASAW Act 1974 RIDDOR (1995) COSHH (1989, 1996) Manual Handling Regulations (1993) Puwer (1998) Loler (1998)

Medicines

Medicines Act 1968

Misuse of Drugs Act 1971

Misuse of Drugs Regulations 1985

Human Rights Act (1998)

Article 2(1) - Right to life

Article 3 - Right not to be subjected to inhuman or degrading behaviour

Article 5 - Right to liberty and security

Article 8 - Right to respect for private and family life

Reference

Dimond, B. (2008) Legal Aspects of Nursing. London: Longman.