Liability and Consent
Julie Smith & Elaine Headley
Discussing the legal and ethical issues that surround Advanced Nurse Practitioners can only increase awareness and improve the need to question and demand clarification of all areas that create situations of ambiguity and uncertainty. This is crucial to facilitate continued development in advanced nursing and ensure it manages to survive with the utmost safety for patients.
Continuing with the legal and ethical issues pertinent to advanced practice, this article will focus on the issues of both liability and consent. Both of these issues are complex and multifaceted, it is therefore the intention of this article to give only a brief overview of the main issues regarding liability and consent. Similarly, it is acknowledged that there are differences in regards to Scottish and English law; this article will address only the main issues related to advanced practice in Scotland.
Thompson(2010) stipulate that vicarious liability is the obligation that falls on one person as a result of an action of another. Subsequently within employment law it would the liability of an employer for the acts or omissions of his employees (Thompson 2010). The Royal College of Nursing (RCN) (2008) stipulate that employers are legally responsible for your actions during the course of your employment. It is not an option and employers cannot opt out of it. Yoder-Wise (2007) explain vicarious liability as a doctrine that enforces the employer to be held responsible for the negligent acts of the employees. The rationale underlying this doctrine is that employees would not have been in the position to cause harm if not hired by their employers. Additionally (Dowling et al 1996) argue that practitioners undertaking advanced roles, must be properly trained for tasks that they are charged with; which are normally attributed to medical staff. Otherwise the NHS board may be held negligent in assigning tasks to someone who is not properly or adequately trained for them. However, should the practitioner undertake tasks or procedures
which are out with their course of employment, the NHS board will be absolved of legal liability, and the practitioner will be held legally responsible. Furthermore, employers are not responsible if you are self employed or you are sued for an action outside the realms of your employment. The RCN (2008) recognise that in rare circumstances an employer may try and recover damages or claims made by a successful claimant, as a result of vicarious liability for your negligence. In situations such as these the RCN scheme provides you with cover. Notably, Smith and Headley (2011) highlight that we as professionals have an ethical duty of care to patients. However, should this duty of care result from emergency situations out with the confines of the hospital setting, the health boards have no legal responsibility to provide vicarious liability (RCN 2008).
In recent years the number of claims against health care professional for negligent acts, although the number is small, have been high profile and this has generated even more discussion around the need for professional indemnity (NMC 2010). The NMC citing the Department of Health (DH) (2010) in their policy review group makes twenty recommendations and the first recommendation states that: “There should be a statutory duty upon registrants to have insurance or indemnity in respect of liabilities which may be incurred in carrying out work as a registered healthcare professional.” The NMC (2010) consider many aspects of nurses having to have their own professional indemnity insurance (PII). They consider the implication of insurance companies increasing the premiums on this type of insurance in relation to the complex nature of the job undertaken by the nurse. Additionally, ANP’s may find that due to the nature of their work they are exposed to increased level of risk. This, the NMC argues may have implications on insurance companies, who do not have the publics best interest at heart, dictating the limits of practice (NMC 2010). These concepts may have implications to ANP’s who as stated by Baid (2006) currently work under practice that is to date is unregulated.
Over the last decade there has been a significant shift from the traditional paternalistic role within healthcare towards patient autonomy (Young 2009). Indeed The Department of Health (2009) maintain that fundamental to good practice is the provision for patients and clients to be involved in the decisions which affect their
health. Similarly Jones (2001) points out that it is not the practitioners’ duty to protect by withholding information which may cause the patient to worry.
Consent for certain procedures, for example myocardial perfusion scanning, once the domain of medical practitioners has increasingly become one of the duties undertaken by Advanced Nurse Practitioners (ANPs). For this reason it is imperative that practitioners are aware of the legal issues surrounding the practice of gaining consent. Traditionally, consent was used as a means to protect the practitioner against claims of battery, however taking into consideration the definition of battery by Fleming (1992) which states “intentionally bringing about a harmful or offensive contact with the person or another”, it is clear that practitioners who carry out procedures have no intent to cause harm or offensive contact. As such in cases concerning consent or the lack of it, will be tried in court as a case of negligence rather than battery, except in cases where consent has been gained fraudulently. In the case of advanced nurse practitioners, it is essential that practitioners explain their identity, in order that patients can make an informed decision as to whether they consent to be treated by a nurse practitioner rather than a member of the medical profession. Should the practitioner not explain their identity and the patient assumes they are a doctor, consent can be considered invalid and legal action for battery may be sought by the patient (Dowling 1996).
For consent to be legal and valid, the practitioner must satisfy three key principles (Medical Protection Society 2009); the consent must be given freely, the patient must have sufficient information to consent the patient must have capacity for consent.
When gaining consent from patients it is essential that full clinical information is given to allow patients the right to make an informed choice as to whether they wish to continue with the procedure/treatment or not. Young (2009) suggests that practitioners have previously only warned patients of the clinical risks of treatments, which they think in their clinical judgement, are the most significant. However, practitioners run the risk of potential negligent action against them, if the procedure/treatment goes wrong and they have not obtained lawful consent by full
and detailed explanation of all the potential risks and consequences. Therefore it is essential that patients are given time to ask questions and if it is possible time to consider all the information before consenting, with no bias or pressure being given by the practitioner.
In Scotland the legal age for consent is 16 years of age, although younger children may be judged gillick competent by medical staff (Medical Protection Society 2009). To be determined as gillick competent the child must be able to prove that they have sufficient understanding and intelligence to fully understand the treatment, and the likely outcomes of either accepting or refusing the treatment. Additionally once a child has been found gillick competent, the parents no longer have the power to exercise their consent on behalf of their child.
This article will not be discussing either consent for children or adults with incapacity. However, it is essential to note that a three stage test can be utilised to test capacity: a) can the patient understand and retain the treatment information b) can the patient believe it c) can the patient evaluate it sufficiently to make a decision (Pattison 2006).
It is worth noting that mental illness does not prevent a patient from giving legally valid consent. What does prevent patients from giving consent, is the inability to understand the information and come to an informed decision (Jones 2001).
Finally consent is a process and not just a signing of consent sheets. Jones (2001) suggests that although consent can be held valid even in the absence of a consent form, a consent form will act as documentary evidence that the issue of consent was raised and discussed. Conversely, Young (2009) argues that consent sheets whilst providing a record that the practitioner obtained consent cannot be used to provide evidence that valid consent was received. The Medical Protection Society (2009) suggest therefore, that practitioners make short notes in the patients records including any discussions regarding consent, a note of the procedure/treatment being consented for and a list of benefits and alternatives discussed. Accurate documentation on the consent process will aid in protection of the practitioner should a claim for negligence be brought into question.
It is essential that ANPs who gain consent from patients are fully aware of current legislation and best practice in their area. They need a good working knowledge of the benefits and risks from procedure/treatment that they will be gaining consent for. They must be satisfied that the patient has capacity and is not coerced into giving consent. They must also be aware of the risk of negligence should they cause harm as a result in failing in their duty of care.
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