Legal Issues In Primary Care Nursing

Gaynor KynastonSolicitor

Legal and Risk Services

Legal and Risk Services2134 Clinical Negligence Claims for NHS in Wales

190 ‘Putting things right’

27 solicitors, 4 trainees, 3 clin neg paralegals

Claims involve a variety of healthcare professionals

Aims and objectivesPotential legal issues arising from nursing

practice in particular titrationStandards of medicine managementConsent/CapacityRecord Keeping

Potential legal problems

Civil claimCriminal action – assault, witnessInquestComplaint to professional regulatory body,

NMC

Professional AccountabilityStatutory DutyMeet standards laid down by Professional

BodyAct within professional competenceAct within the lawResponsible for own actions and actions of

others

Work within the law

Consent of employerVicariously liableAppropriate qualificationsAppropriate trainingWork according to policy and protocol

Civil Claim

Pre-requisites to a successful civil claimOwe patient a Duty of CareBreach of Duty of care occursThe breach Causes harm to the patient

Material Contribution – Bailey v MOD & Another [2008] EWCA

Duty of Care

All healthcare professionals treating a patient owe a duty of care to them

The test of when that duty is breached is a peer test. The law will judge your practice against that of a responsible body of practitioners with your qualification – Bolam v Friern Hospital Management Committee [1957]

Sources of breach of duty

Incorrect actAn omissionDelayInvalid consentRecord-keeping

Examples of breach of duty MMR given instead of HibNeuropathy following venepuncturePt given follow up treatment for only 1 month

rather than a year (breach of duty - record keeping)

Iatrogenic injuryDelay in referral to hospital led to cauda equina

symdromeScript for atropine given to wrong patient-

glaucoma

Material Contribution - BaileyExploration of common bile duct.Post –op: no recovery chart, no records following

transfer to ward, no records of review until 8am next morning. Deteriorated ? Post op pancreatitis.

Acute renal failure, respiratory failure, acute pancreatitis

Trans Portsmouth – Gastroscopy – further surgery due to bleed – now septic

Made steady progress initially – PEG and oral fluids

Bailey cont’dVomited – aspirated – arrested – permanent brain

damageHeld: Aspirated due to weakness – weakness due to a

combination of lack of rescusitation following first procedure and pancreatitis.

Had she been adequately resuscitated she would have been stronger and not lost gag reflex.

If negligence more than negligible then material contribution established

Claimant can recover in full

NMC Code of ConductProvide high standard of care at all timesPersonally accountable for your own actionsAlways act lawfullyEnsure you obtain consent before you begin any

treatment or careBe aware of the legislation surrounding mental

capacityDelegate effectively – competence, standards,

supervision and support

When is consent necessaryFor every examination, investigation and

treatmentWritten - Verbal – ImpliedYou will need to explain the method of

titration to the patient to give them an opportunity to raise any concern, could be by way of leaflet that you go through with them

Who should obtain ConsentUsually the individual performing a procedure should be

the person to obtain consent. In certain circumstances, you may seek consent on behalf of colleagues if you have been specially trained for that specific area of practice.

Obtaining consent can be delegated providingAnyone you delegate to can carry out your

instructions; andThe outcome of any delegated task must meet the

required standard. (NMC: Guidance on consent)

Valid ConsentCapacityInformed VoluntaryContinuing

Capacity to consentMental Capacity Act 2005Over 16Presumption of capacity s1(2)If pt has capacity – bound by decision

however irrationalRecord advice given Get pt to sign – record any refusal to do soCountersignatory

Medicines Management NMCStandards for Medicine Management

(2012) – Document governing the supply and administration of medicines

CoversTitration: standard 13Delegation: standard 17Students and unregistered staff: standards 18

and 19 respectively

TitrationWhere medication has been prescribed

within a range of doses, it is acceptable for Registrants to titrate doses according to patient response and symptom control, and to administer within the prescribed range.

Registrant must be competent to interpret test results and assess patient

Record Keeping

Delegation to other members of the teamRegistrant is “responsible for the delegation of any

aspect of the administration of medicinal products and they are accountable to ensure that the patient, carer or care assistant is competent to carry out the task”

This will require education, training and assessment of the patient, carer or assistant. Competence should be assessed and reviewed periodically. Records of training received and outcome of assessments should be made and be available.

Unregistered practitionersUnregistered practitioners are those providing

care who are neither registered or licensed by a regulatory body and have no legally defined scope of practice

In delegating the administration of medicinal products to unregistered practitioners, it is the registrant who must apply the principles of administration of medicinal products. They may then delegate an unregistered practitioner to assist in ingestion or application

Assessment: standard 9As a registrant, you are responsible for the

initial assessment and continued assessment of patients who are self administering and you have continuing responsibility for recognising and acting upon changes in a patient’s condition with regards to the safety of the patient and others.

ConfidentialityDuty Maintain it unless -Consent

-Best interests -Statute/regulations DPA 1998

-Court Order -Public interest

Record keepingPart of your duty of care to your patient and

as important as administering treatmentPoor record keeping leads to unnecessary

claims against NHS bodiesPoor record keeping makes claims difficult to

defendJudged by standard of records

Summary Checklist

Can I demonstrate my competence to my patients, my manager, my professional body or a lawyer?

Work within your competence; record your learning in a portfolio; review your recording keeping

Relevant documents/legislationDocumentsThe Code: Standards of Conduct, Performance and

Ethics for Nurses and Midwives (2008)Standards for Medicine (2010)

LegislationMedicines Act 1968Misuse of Drugs Act 1971Misuse of Drugs Regulations 2001

Legal and Risk Services