Lesson 2 - Introduction to law

Course Overview

• The course includes HLTENN036 Apply Communication Skills in Nursing Practice and HLTENN041 Apply Legal and Ethical Parameters to Nursing Practice.

Introduction to Law

• Understanding Law is defined as a set of rules and principles formed by social forces, providing society with stability.

• Its prescriptive nature dictates what individuals must or must not do.

Citizen Responsibility

• Laws hold punitive measures for violations.

• Citizens are expected to understand their legal system, as ignorance is not an excuse for law breaches.

Common Law

• Common law is created by judges through case decisions and establishes precedence.

• Future cases in similar circumstances are guided by previous rulings.

• The law of precedent indicates that lower courts cannot diverge from higher court decisions.

• Law reports document precedents and rationales.

Acts of Parliament Relevant to Nursing

• Relevant Acts include the Nurses Act 1993, Aged Care Act 1997, Drugs, Poisons and Controlled Substances Act 1981,

  • Drugs, Poisons and Controlled Substances Regulations 2006,

  • Human Rights and Equal Employment Opportunity Act 1995,

  • Medical Treatment Act 1998,

  • Freedom of Information Act 1982 (Commonwealth & Victoria),

  • Mental Health Act 2014,

  • Human Tissue Act,

  • Infertility Treatment Act,

  • Health Records Act.

Types of Law

• The types of law include Family Law, Civil Law, Constitutional Law, Industrial Law, Contract Law, and Criminal Law.

• Criminal and civil law are most pertinent to nursing.

Criminal vs Civil Law

• Criminal law is initiated by police or a prosecutor and aims to punish offenders.

• Civil law is initiated by one party against another and aims to compensate for wrongs.

Law of Torts

• Torts are defined as civil wrongs from a breach of duty established by common law or statute.

• The remedy is usually resolved through damages, primarily to compensate the injured party.

• Clients have the right to sue healthcare providers for monetary compensation.

Relevant Torts to Nurses

• Relevant torts to nurses include:

  • Negligence,

  • Negligent advice,

  • Defamation,

  • Bailment,

  • Trespass to a person (encompassing assault, battery, and false imprisonment).

Intentional Torts

• Intentional torts include:

  • Assault (threat of physical contact),

  • Battery (unwanted touching),

  • False imprisonment (unjust restriction of freedom),

  • Invasion of privacy (unauthorized sharing of personal information),

  • Defamation (harm to reputation through false statements).

Unintentional Torts

• Unintentional torts involve:

  • Negligence (failure to provide reasonable care leading to client harm),

  • Malpractice (professional failure to meet care standards, e.g., incorrect diagnosis or treatment).

Elements of Negligence

• The elements of negligence include:

  • Duty of care (the professional's obligation to the client),

  • Breach of duty (failure to meet the care standard),

  • Damage (foreseeable injury or loss due to breach),

  • Causation (the link between breach and damage).

Duty of Care and Breach of Duty

• Healthcare professionals owe a duty of care to clients, expected to provide reasonable treatment and advice while preventing foreseeable harm.

• Breach of duty is determined by comparing healthcare actions to established standards, where differing actions may lead to liability for negligence.

• Evaluating breach involves assessing whether a competent professional could foresee the risk of harm and evaluating the significance of the risk and precaution measures.

Reasonableness

• The reasonable person test is used to assess actions, determining what a prudent enrolled nurse would do in a similar situation.

• All elements of negligence must be proven on the balance of probabilities.

Medical Consent

• Medical consent is related to negligence, requiring practitioners to obtain consent before treatment.

• Adults are presumed to possess decision-making capacity unless proven otherwise.

• Emergency treatment is necessary to save life, prevent serious harm to health, or alleviate significant pain or distress.

• Patients must understand relevant information, retain necessary information for decision-making, use and weigh that information in decision-making, and communicate their decisions.

Directive or Certificate Refusing Treatment

• When a valid refusal certificate exists or a patient has refused specific treatment in an instructional directive, treatment cannot proceed.

• Practitioners must check for advance care directives.

Treatment Decisions

• It is important to document patient treatment preferences clearly, either in section A or B, with stated reasons.

• Valid consent can be implied, verbal, or written, with nurses witnessing but not obtaining written consent.

• For consent to be valid, it must be freely and voluntarily given, the person must have legal capacity, and they must be broadly informed.

Competency for Consent

• Competent adults (generally those over 18) can give consent, while young clients may consent if they understand the treatment implications.

Client Understanding

• Clients must comprehend their condition, treatment options, and associated risks, with the doctor assessing the understanding level based on treatment complexity.

• The medical treatment decision-maker is the first person available, willing, and able to make decisions; can include an appointed medical decision maker or guardian.

• The medical decision maker hierarchy includes spouse/domestic partner, primary carer, adult child, parent, and adult sibling.

Consent under Mental Health Act

• Involuntary clients may have different consent processes, with capacity assessment and advocate identification being key considerations.

• Consent must be specific to treatment; lack of risk disclosure may lead to liability issues.

• Informed consent, required before treatment, entails clear communication of risks, side effects, complications, and alternatives.

Disclosure Guidelines

• Clients should receive adequate information for decision-making, governed by NHMRC principles.

• Known risks need disclosure, especially common or severe outcomes.

• Factors influencing disclosure include client condition severity, intervention nature, risk likelihood, and client understanding.

Client Characteristics and Circumstantial Standards

• Information must be tailored based on individual client characteristics and context.

• Different care standards may apply based on the client's situation and understanding capacity.

• Topics for discussion with clients should include illness nature, proposed treatment, expected benefits, risks, and alternatives, long-term outcomes, costs, and time involved in treatments.

Ongoing Consent

• New consent is not necessarily required for each step of treatment but should be documented at the program's start.

• Any new treatment or arising risks will require new consent.

• No separate consent form is needed for minor procedures but criteria for valid consent still apply.

• Competent clients have the right to refuse or withdraw consent at any time, even for life-saving treatment.

• Legal provisions protect patients' rights and outline refusal of treatment certifications; minors over 14 can refuse treatment if they understand the implications.

Legal Capacity and Age

• Legal capacity is generally 18 years; however, specific conditions allow for minors to consent in certain situations.

• Cultural aspects of consent recognize differences in individual versus collaborative decision-making practices across cultures.

• Defamation in law of torts refers to injury to reputation through false statements, including slander (verbal) and libel (written).

Vicarious Liability and Trespass to a Person

• Employers are liable for employee actions; employees must maintain competence.

• Trespass to a person covers assault, battery, and false imprisonment, defining physical violations of a person's rights.

• Assault involves fear-inducing acts without physical contact; battery includes unwanted physical contact.

• False imprisonment relates to detention, where the perception and nature of confinement matter.

• Types of restraint may include physical (cuffs, belts), chemical (sedation), psychological (threats), or environmental (locked doors).

• Restraint usage should be reserved as a last resort, adhering to proper policies; regular reviews of restraints are essential, with outlined client observations.

Alternatives to Restraint

• Alternatives to restraint include using companions, frequent observations, communication, and low stimulus environments.

Health Practitioners Regulation Act - 2009

• This act regulates various health professions, promoting public safety and consistency in healthcare, alongside mandatory reporting requirements related to abuse that vary by location and client type (children/adults).

• Reporting for children is required when there is belief of risk during professional duties due to neglect, abuse, or lack of protection.

• Reporting for adults involves the Serious Incident Response Scheme (SIRS), aimed at monitoring and preventing abuse in care settings.

• Types of reportable incidents under SIRS include unlawful conduct, neglect, emotional abuse, unexplained absence, etc.

• Professional conduct reporting necessitates immediate notification concerning impairment or misconduct.

Documentation in Healthcare

• Documentation in healthcare is vital for communication, quality care, legal records, and funding.

• Principles for effective documentation must be accurate, factual, include all relevant details, and adhere to proper formats.

• Standards for documentation require the use of objective and subjective data, ensuring timely entries, and correcting errors promptly.

• Additional best practices for documentation involve including relevant emotional states, client identifiers, and ensuring clarity with complete entries.