Week 5: Legal Context for Practice

Why should nurses know the laws/legal system?

- must know ethical/legal standards of practice + duty of care to protect license and patients

- nursing = autonomous but some laws can regulate the profession (misconduct)

Explain how Canada's Court system works

Hierarchy with multiple layers

Highest level of Canada’s Court System

Supreme court of Canada

Main branches of Canadian Law (2, complementary)

Procedural Law…legal rules that govern procedures for settlement of criminal/ civil disputes

Substantive Law…rights & obligations of members of society
…Statue + Case law

Branches of Substantive Law (2)

Public Law…criminal law—constitutional law—administrative law

Private/civil Law…family law—contract law—tort law—property law—labour law

Foundations of the Canadian Legal System (2)

French Civil Law

English Common Law (aka Case Law)

French Civil Law (3)

…in QUEBEC ONLY

…follows CIVIL CODE — rulebook to resolve civil/private cases

…b/o scholarly writings from legal experts, common sense, ethical principles

**QC still uses english common law for public law cases

English Common Law

…b/o past judgments/rulings in cases (precedents) = CASE LAW

…NO rule book; objectives = consistency + predictable

…4 sources of common law

**used for ALL public law in Canada + private except QC

Sources of Common Law hierarchy (4)

Statutes → Case Law (precedent) → Doctrine → Custom Law

Statutes

…formal written laws passed by government (federal/provincial/territ. legislature)

…HIGHEST LEVEL OF AUTHORITY of the 4 sources → overrides case law

Case Law (precedent)

…past court decisions (if what was done in similar cases can apply to current)

…PRIMARY SOURCE OF COMMON LAW — less authoritative < statutes

Doctrine

…informed opinions, materials written by academics/scholars

…more respect for scholar = more influence of doctrine—not +authoritative

…used to help interpret statutes/case laws

Custom Law

…longstanding, accepted practice of a trade helps inform a court decision

…UNCOMMON — only used if no info is available from the other 3 sources

Division of Common Law (2→2-1)

Case Law…Private (civil) Law + Public Law

Statutes…Laws & Legislations

What legislation are nurses regulated under in Ontario? (2)

2 STATUTES — Regulated Health Professions Act (RHPA) + Nursing Act

…defines scope of practice + rules RNs must follow (code of ethics)
…legal system measures RN’s practice against the standards of practice

…CNO gets its authority from these

Regulated Health Professions Act (1991) r/t nursing

defines nursing scope of practice + professional duty of care

…promotion of health & the assessment of + provision of care for + treatment of health conditions by supportive, preventative, therapeutic, palliative & rehabilitative means to attain/maintain optimal function

Professional Duty of Care (re: nursing standards of care)

legal obligation to those in our care → must act competently + diligently

Professional Competence (re: nursing standards of care)

broad professional knowledge, skills, attitude needed to practice as measured by standards of practice

Professional Misconduct

an act or omission that is in breach of the accepted ethical & professional standards of conduct

…nurse DOES SOMETHING WRONG or NEGLECTS TO DO SOMETHING

…STATUTE — enforced by CNO (under RHPA + Nursing Act)

…Eg: RN student claims to be NP = misrepresenting scope of practice = violation of CNO standards → professional misconduct
…Eg: withholding essential prep for GI scope d/t inconvinience = neglecting to do something = failing to meet CNO standards → professional misconduct

How is Professional Misconduct regulated? (re: legislation)

enforced by CNO which gets authority from Statute Law (RHPA + Nursing Act)

Professional Misconduct examples (6)

…failing to meet a standard of practice

…improperly delegating a controlled act

…directing nursing student to do something they are not competent to do

…practicing nursing while impaired

…abusing patients

…failing to keep records as required

Professional Misconduct re: Documentation (4)

..fail to keep records (+inadequate documentation)

..falsifying a record

..signing/issuing misleading statements

..giving info about pt w/o consent

**documentation = legal record

Case law

law established through judicial decisions of the court, created over time

Role of courts in case law

Resolve disputes arising between individuals and interpret and apply legislation passed by different levels of government and common law

Civil/Private law

Includes (3)

Standard of proof based on _

_ vs _

Outcome often _

Includes contracts, property disputes and torts

Standard of proof is based on balance of probabilities

Plaintiff vs defendant

Outcome often monterary award to address harm inflicted

Criminal Law

Set out in the _ or _

Acts of _

_ investigates and prosecutes criminal allegations on _

Most offences require _ to be found guilty

Punishments _

Set out in the Criminal Code or other federal laws

Acts of intentional harm to individuals that are offences against society

State or crown investigates and prosecutes allegations based on victims behalf

Require proof beyond a reasonable doubt to be found guilty

Wide range of punishments: incarceration

Tort

a civil wrong committed by one person against another such as to cause some injury or damage to either person or property

Intentional/Battery tort

person deliberately carries out an action regardless of consequences

may not necessarily cause harm

ie doing something without consent

When is doing something without consent ok (will not be charged with battery)

Pt unconscious and situation life threatening

Pt incompetent and situation life threatening

**absence of SDM

Non intentional/Neglience Tort (2 types)

Non intentional failure to do something causes harm

Comission: harming pt by action

Omission: failing to do something

Are torts criminal

NO!

How are torts applied to nurses

Nurses have a duty of care to not harm patients and are expected to meet standards of care

Elements of a negligent action (3)

Duty: the nurse had a duty toward the plaintiff

Breach of Duty: the nurse did not exercise that duty

Injury or loss: the breach of duty of care resulted in harm

Malpractice

The negligent performance of acts in a manner that does not conform to generally recognized practice such as the standards of care in nursing practice

negligence that involves HCP not conforming to generalized standards/lawful acts in a careless way

3 components of criminal negligence

Disregard for consequences

Fail to recognize risks or takes risks anyway

Action MUST cause death or serious bodily harm

ie coming into work intoxicated and giving pt a lethal dose of med in med error

liability

the legal responsibility owed for causing damage/injury to another

Nursing principles of liability:

Maintaining _

Uphold _, _

The _ applies to both beginner and experienced HCP

Maintaining professional duty of care

Uphold standards of nursing care, hospital protocols and guidelines

The same standard of care applies to beginner and experienced

Employer responsibilities of Liability

_, _ and _ personnel including _

Ensure _ of staff and patients

Maintenance of _

Ongoing _

Adherance to _

Formalized through _ and _

Selection, instruction and supervision of personnel including students

Ensure safety of staff and patients

Maintenance of equipment and safe env

Ongoing training

Adherance to legislation and regulations

Formalized through policies/rules and procedures/action

Vicarious libability

Liability for the wrong doing of another

Arises from employer-employee relationship

With Vicarious libability, the _ may be responsible for _

the healthcare organization may be liable for negligent actions of an employee/student

Exception to vicarious liability

Employer responsibility extends only to "work done in course of employment"

(only during working hours)

Examples of vicarious liability (2)

Nurse leaves client on a stretcher without side rails up and the client falls and fractures their arm

Nurse administers an order without checking its correct. The wrong dose was ordered and the patient was harmed

Can the hospital be held liable for nurse actions?

Yes, nurses are employees of the hospital

Can the hospital be held liable for doctors?

Doctors not employees of the hospital (contract based)