Legal Ethical and Professional Issues in Nursing Essay

Legal Ethical and Professional Issues in Nursing Essay

Legal Ethical and Professional Issues in Nursing Essay

1. Introduction
Ethics regards standards of moral judgement and professional conduct. Nurses are highly accountable to patients, the public, employers, and the entire

profession. It is imperative they have a sound understanding of various ethical, legal and professional issues they will face during their careers. There  Legal Ethical and Professional Issues in Nursing Essay

are three primary duties for nurses, among many others, which are the duty of autonomy, confidentiality, and duty of care to all patients. i These duties are supplemented by the principles of beneficence, meaning promoting or doing

good and acting in patients’ best interests, and non-maleficence, meaning to avoid harm. ii These are professional duties which become legal duties if any legislation or policies are

breached during practice. In 2001 a study found that there was a perceived need for more advice on ethical dilemmas within the health profession, after

increasing legal cases and public inquiries.iii As a result, various Clinical Ethics

Committees (CECs) and Research Ethics Committees (RECs) were established within the UK to provide comprehensive ethics support. Constantly changing values

in health, behavioural science, and society mean that medical practitioners must be aware of new ethical issues for the medical sector, and learn how to

respond appropriately.

Permalink:…in-nursing-essay/ ‎

2. Regulatory Bodies
The nursing practice upholds its own code of ethics and this is regulated by strict disciplinary guidelines, with the governing body having more influence

over its member than legislative entities in medical matters. The Department of Health issued a Health Service Circular 219.99, which mandated some

requirements of a new nursing education programme. In the Nursing and Midwifery Order 2001, the Nursing and Midwifery Council (NMC) must establish minimum Legal Ethical and Professional Issues in Nursing Essay

standards and requirements for nursing education in professional and ethical issues.iv The NMC

is an organisation established by parliament to protect the public and regulates the medical and nursing professional standards using the Register of

Medical Practitioners (RMP). The Register acts to allow the GMC to monitor entry to the profession only by achieving the standards required to become an

RMP, and also by monitoring ‘fitness to practice’ proceedings to ensure all practitioners maintain consistently high standards of conduct. The

NMC contains guidelines regarding the expectations of particular duties such as confidentiality, medical research obligations, consent rights, and

autonomy. The nursing practice is expected to comply at an individual level with these guidelines on a daily basis. The NMC’s ‘Code of

Professional Conduct: Standards for conduct, performance and ethics’ is widely adhered to in the profession. To be registered, it is a general rule

that nurses must undergo education in addition to personally indicating through performance and training that they intend to follow ethical standards to

retain a licence for nursing.v

The General Medical Council (GMC) is a statutory entity with the role of protecting the public by maintaining a register of medical practitioners fit to

practice, while also monitoring complaints about practitioners. There are fourteen key concepts which outline the ethical standards and responsibilities Legal Ethical and Professional Issues in Nursing Essay

expected of a doctor. The GMC has also provided guidance on particular areas such as consent, confidentiality, and withholding or withdrawing This guidance is not mandatory, but is recognised at law, and in the case of W v Egdell, the court referred to the GMC guidelines on confidentiality.vii The

British Medical Association (BMA) is the national association of practising doctors, with its own medical ethics unit which deals with individual ethical

queries from doctors and nurses, and provides guidelines on ethical issues. Together, the GMC and BMA act to provide guidance for nurses and other

practitioners to assist in ethical decisions, however it should be noted that these decisions are highly personalised, dependent on the patient and

situation, and often subjective therefore unable to be entirely answered by these guidelines.

Given that the duty of confidentiality is a combined public interest and individual interest assessment, the judicial system does not provide ample

guidance. This creates a problem for nurses and the ethical questions about who to protect. The GMC acts to protect practitioners who breach

confidentiality rules if it was in the public interest, although this depends on the circumstances. The GMC will be unable to protect nurses if disclosure

amounts to a significant breach towards the particular individual, despite assessment of legal and ethical questions. viii While case law often determines the ‘public interest’ query, individual

practitioners and nurses must still exercise professional judgment and are personally accountable for any decisions which may breach ethical standards. ix

However, the ethical guidelines are not entirely subjective, and the NMC regulates the code of ethics which enforces all disciplinary processes for

practitioners. The NMC states that patients can expect professionals to consider all information confidential to enhance trust, and no information can be Legal Ethical and Professional Issues in Nursing Essay

disclosed without consent other than in exceptional circumstances.x Nurses are also under

instruction from doctors and employers, required to exercise their own judgment as well as following directions and adhering to the ethics of the team and

the Code of Professional Conduct for Nurses.xi This can lead to some conflict, where they

may be instructed to act contrary to their own personal beliefs, hence a balance of opinions must be applied by the individual to ensure they continue to

act in the patient’s best interests while following ethical obligations. Additionally, nurses are expected to work together with other health

practitioners and care professionals or agencies, service users, carers and communities, and extended families, to ensure decisions made about patient care

adhere to shared values.xii

3. Legal Issues in Nursing
The current legal framework in the UK includes statute law and case law. There are also some jurisdictional differences within the UK with Scotland and

Northern Ireland having separate legal systems.xiii For instance, in Scotland a person can

appoint an attorney of welfare to make medical treatment decisions if that person becomes incompetent, under the Adults with Incapacity (Scotland) Act 2000, yet this is not an option in England. There is a range of statutes impacting health care in the UK, as Legal Ethical and Professional Issues in Nursing Essay

well as international standards. These include the Abortion Act 1967, the Mental Health Act 1983, theData Protection Act 1998, The Children Act 1989, various Acts relevant only in Scotland, and guidance such as the Guidance for Access to Health Records Requests provided by the Department of Health. Particular examples of these acts include the strict control

of disclosure of personal information under the Data Protection Act, and the concurrent use of the Public Interest Disclosure Act 1998 if

nurses are concerned about confidentiality decisions made at executive levels in organisations. The Human Rights Act, Article 8, also allows

people to take action against public authorities who have no upheld their right to a private life. xiv When read with Article 3, it can be implied that there is a fundamental right for all

individuals to determine their own lives, without interference from the government, including the right to choose medical treatment – treatment must

be either consensual, or if the patient is in fact incapable of consent, it must be therapeutically necessary. xv

Case law is the second branch monitoring ethical standards in nursing and the medical profession. Various prominent medical cases have been heard recently,

in particular relating to nurses assisting suicide, the refusal of medical treatment by a patient who is competent, and using embryos frozen for IVF. xvi In England, nobody can consent to treatment for an incompetent adult, so the Court must Legal Ethical and Professional Issues in Nursing Essay

make a declaration in the best interests of the patients and the overall medical practice. However, before reaching litigation, it is often expected that

nurses are competent in making these decisions and informing their supervisors and subsequently the court regarding patient consent. xvii Nurses require a sound understanding of the associated ethical and legal principles in

order to make such a judgment, and this is best understood by implementing stringent teaching and education procedures prior to practicing in a health

clinic to ensure they can apply principles of health care and ethics.

In England, a patient is considered a minor if he or she is under 18 years of age, although in Scotland the required age is lower at 16. In England and

Wales, the Family Law Reform Act 1969 states that a person who is 16 or 17 years old has a statutory right to consent to treatment, under section

8, a minor aged 16 or over is considered an adult and has the legal rights which flow from this categorisation. The consent must be effective, and then no

consent is required from a parent, except in specific procedures such as organ donation and nontherapeutic research. xviii The consent is valid if the minor is of ‘sufficient intelligence and

understanding to appreciate the information and advice about the treatment and what it involves,’ for instance if a teenage girl consent in receiving

contraceptive advice without her parents’ knowledge or consent.xix As the law enforces Legal Ethical and Professional Issues in Nursing Essay

a duty of confidentiality by nurses to adults, the law then extends the duty to children who are competent in consenting to treatment. Knowledge of these

circumstances is integral in enabling nurses to perform their roles following ethical standards.

The most common reaction to a perceived breach of ethical standards in the health profession is an action in negligence and malpractice, being the act or

omission or commission made by the nurse or doctor.xx It requires four elements: duty, being

a legal obligation owed to the patient – nurses must provide the degree of care reasonably exercised by other nurses in that practice area. Second, a

breach of that duty by not meeting the required standard. Third, causation, which is a factual connection between the action of the nurse and the harm

suffered by the patient. Finally, damages, being monetary payment intended to compensate the patient for the detriment. xxi The patient must have suffered bodily, economic, or emotional injury. The breach of duty

test refers to the reasonable judgments of ‘responsible bodies of medical opinion,’ where those of special skills or competence are judged at a Legal Ethical and Professional Issues in Nursing Essay

higher standard for that profession, rather than the ordinary person test.xxii The standard

of care is also higher for professionals, and while the primary duty is with the doctor, nurses can also be held liable even when acting under direction

from her employer.xxiii The nurse, even when supervised, must exercise her own skill and

competence as expected of a nurse of the same level and experience.xxiv

4. Confidentiality
The principle that a patient who understands relevant information regarding his or her medical problem should be able to make a decision about treatment

extends to the duty conferred on doctors and nurses. This is a duty of confidentiality, to not give information about the patient to others without

consent. The patient must be considered competent to make the decision, as in other circumstances a breach of confidence may be permitted. xxv The principle of autonomy for competent individuals then implies that confidentiality

must be respected. In some circumstances, complying with requests for confidentiality may be detrimental to the patient – which is the best interest

principle and nonmaleficence conflicting with the right to autonomy.xxvi The nurses must Legal Ethical and Professional Issues in Nursing Essay

carefully assess the possible consequences of breaching confidentiality, considering the risk of harm of not breaching which must be significant to justify

ignoring the concept of autonomy. The GMC guideline for confidentiality allows disclosure under Paragraph 27 where: ‘disclosure of personal

information without consent may be justified in the public interest where failure to do so may expose the patient or others to risk of death or serious

harm.’xxvii Discussion regarding confidentiality must be informed by ethical

principles following case law and legislation, in addition to guidance policies, and any on-job learning which may be applied to independent cases.

Confidentiality is further governed by the Health Insurance Portability and Accountability Act 1996, which outlines the requirement to protect

distribution of confidential information on patients.xxviii This mandates the need to reduce

online systems tracking, monitoring login systems and monitoring confidential information distribution. Password systems are tracked to ensure hospital

employees cannot access patient files without consent. A recent example is the event at the Moffitt Cancer Centre, after it came to light that a research

study falsified patient consent.xxix Hundreds of documents were fraudulently produced during Legal Ethical and Professional Issues in Nursing Essay

a cancer research study, which breaches the duty of a nurse to obtain an informed consent signature before conducting a procedure. xxx The signature implies that the patient is aware of the procedure, its alternatives, and

possible risks, so when a nurse does not obtain the signature and falsifies it, the employer and the nurse are both accountable for damages. xxxi

The right to confidentiality has been supported judicially in several prominent cases, including Hunter v Mann [1974] QB 767, W v Edgell [1990] Ch 359, and in X v Y [1988]. In the latter case, the court stated that ‘the doctor has a duty not to voluntarily disclose without the

consent of his patient information which he has obtained in his professional capacity, save in exceptional circumstances’ (at [23]). These

circumstances are when there is a competing public interest, and the case went on to outline: ‘cases may arise in which disclosure in the public

interest may be justified, such as a situation in which the failure to disclosure appropriate information would expose the patient, or someone else, to a

risk of death or serious harm’ (at [25]). In that case, Justice Rose reiterated that an AIDs case involved a significant public interest, but also a

fundamental right to individual confidentiality. While the public had an interest in publication of the matter , it was held that it did not outweigh the Legal Ethical and Professional Issues in Nursing Essay

right to confidentiality in the medical context, in particular regarding an AIDs patient. Justice Rose stated: ‘the public in general and patients in

particular are entitled to expect hospital records to be confidential, and it is not for any individual to take it upon himself or herself to breach that

confidence whether induced by a journalist or otherwise’ (at [35]).

5. Autonomy
Nursing ethics revolves around the concept that nursing is collaborative, hence patients have an inherent right to bodily autonomy wherever possible, and

this includes a human rights component and the need to allow informed consent, or the withholding of this consent. The law of informed consent underlies

the ethical notion of autonomy, outlining the minimum standard of behaviour accepted by the community. xxxii Compliance with legislation is mandatory, whereas compliance with the ethical notions

of autonomy must be applied at a personal level within the nursing practice. For example, in the UK, the evolution of the Mental Capacity Bill highlights the public’s belief that patients have the right to make their own treatment decisions. Contrastingly, the Human Fertilisation and Embryology Act 1990 is applied by the courts strictly, for instance in the interpretation of the word

‘embryo’, which limits the autonomy on a legislative basis. There are also conflicts within ethics and autonomy, for instance the issue of

parental choice in the ‘saviour sibling’ debate may not adhere to overall societal benefits, including the ethical duty to act beneficently

towards all children, including future children.xxxiii These are particularly sensitive

issues which require subjective personal judgment of nurses involved. Generally, nurses must comply with patient request even if they do not personally

agree, and ensure that in the nature of justice, all clients are treated fairly and equally, for instance regarding distribution of hospital resources and

time spent per patient.xxxiv

Autonomy, and by extension consent, can be both legally and ethically ‘effective’, depending on context and the patient circumstances. From a

health sector perspective, autonomy may or may not be practical for the purposes of precluding liability from litigation and avoiding ethical criticism, Legal Ethical and Professional Issues in Nursing Essay

weighed against the best interests of the patient.xxxv It may also be that the patient does

not have the requisite decision-making capacity, in which case nurses may treat the patient without consent. This is usually grounded on the principle of

necessity, and the circumstances in which it is permitted are limited.xxxvi It must be

proven as necessary to treat the patient, and in addition the necessity to act was coupled with it being impractical to communicate with the patient, and

the action taken was that which a reasonable person in the same circumstances would take if acting in the patient’s best interests. xxxvii Further, when acting under necessity, the nurse must prove she did no more than was

immediately necessary and in the patient’s best interests.xxxviii The question of what

is immediately necessary, not acting further and in breach of patient autonomy, is not legislated and remains an ethical dilemma in the nursing practice.

6. Conclusion
Legal and ethical issues are prevalent in the health care industry, and in particular for the nursing practice, where nurses have daily individual contact

with patients. Ethical issues are wide-ranging, from organ donation, genetic engineering, assisted suicide, withholding treatment in end-of-life care, or

simple procedures requiring consent. Many nurses do not have formal education in legal and ethical issues, and as such as often unqualified to address

these questions when they arise in the medical environment.xxxix While there are legal,

ethical and professional guidelines which mandate the conduct of professionals, it does require education in the area and an ability to be aware of the

risks of any personal decision made regarding a patient. Nurses must be guided in learning about ethics within their profession to ensure mistakes to do Legal Ethical and Professional Issues in Nursing Essay

not occur. As nurses have contact with patients on a daily basis in dynamic environments, ethical issues vary based on patient profiles, medical technology

development, and healthcare specialties. Awareness of ethical problems involves rational reflection of what action should be taken in particular scenarios,

and adhering to principles guiding this behaviour. Nurses are influenced by professional, personal, cultural, social, and political factors. The

fundamental responsibilities of all medical practitioners remains constant, being to promote health, act in the best interests of the patient, prevent

illness, remove suffering, and extend services beyond the individual to their family and the community.

7. References
i Edwards, S. (2009). Nursing Ethics: A Principle-Based Approach. 2nd edition. Palgrave MacMillan: London, p. 31.

ii Gordon, J., Rauprich, O. & Vollmann., J. (2009). ‘Applying the Four-Principle Approach’. Bioethics. Vol 25. Issue 6, p. 13.

iii Slowther A, Bunch C, Woolnough B, Hope T. (2001). Clinical Ethics Support in the UK: A review of the current position and likely development.

London: The Nuffield Trust, p. 22.

iv Nursing and Midwifery Council (2010) Standards for pre-registration nursing education. Nursing and Midwifery Council, London, p. 17.

v Nursing and Midwifery Council 2010, p. 18.

vi General Medical Council. (2013). Standards and ethics guidance. Available at: [1November 2014]

vii W v Egdell [1990] Ch 359

viii GMC 2013.

ix Griffith, R. (2013). Law and Professional Issues in Nursing. Transforming Nursing Practice Series. Edition 3. SAGE Publications, p. 9.

x Nursing and Midwifery Council 2010, p. 15.Legal Ethical and Professional Issues in Nursing Essay

xi United Kingdom Central Council for Nursing, Midwifery, and Health Visiting (UKCC) (1992). Code of professional conduct for the nurse, midwife and health visitor. London: UKCC.

xii Nursing and Midwifery Council 2010, p. 13.

xiii Griffith 2013, p. 10.

xiv Campbell v MGN [2004] UKHL 22

xv Griffith 2013, p. 11.

xvi R (on the application of Pretty) v DPP [2001] UKHL 61; Re B (Consent to Treatment: Capacity) [2002] EWHC 429; Evans v Amicus Healthcare Ltd & Ors [2004] EWCA (Civ) 727.

xvii Griffith 2013, p. 15.

xviii Griffith 2013, p. 16.

xix Gillick v West Norfolk and Wisbech AHA [1985] 3 All ER 402.

xx Edwards 2009, p. 59.

xxi Griffith 2013, p. 22.

xxii Bolam v Friern Harnet HMC [1957] 2 All ER 118.

xxiii Whitehouse v Jordon [1981] 1 WLR 246.

xxiv Maynard v West Midlands Health Authority [1984] 1 WLR 634).

xxv Edwards 2009, p. 59.

xxvi Edwards 2009, p. 63.

xxvii GMC 2013.

xxviii Lachman, V. (2006). Applied ethics in nursing. New York: Springer, p. 102.

xxix Martin, R. (2010, August 26). ‘Moffitt Cancer Centre discovers patient consent was falsified.’ St. Petersburg Times. Available on: [1 November 2014]

xxx Martin 2010.

xxxi Lachman 2006, p. 103.

xxxii Griffith 2013, p. 21.

xxxiii Kleiman, S. (2007). Revitalizing the humanistic imperative in nursing education. Nursing Education Perspectives. Issue 8, p. 36.

xxxiv Kleiman 2007, p. 37.

xxxv Kleiman 2007, p. 49.

xxxvi Edwards 2009, p. 77.Legal Ethical and Professional Issues in Nursing Essay

xxxvii Lord Goff in Re F (Mental Patient: Sterilisation) [1990] AC 1.

xxxviii Marshall v Curry [1933] 3 DLR 260; Murray v McMurchy [1949] 2 DLR 442.

xxxix Kleiman 2007, p. 50.

Give a definition for each of the following legal and professional issues and discuss how each one applies to this Case Study:
Consent, restraint, assault and battery
Duty of care, negligence and vicarious liability
Scope of practice (the legal and professional boundaries imposed upon you as a nurse)
Advocacy (the nurse’s role as an advocate for the client)
Open disclosure
The Coroner

The principles of consent are based on common law and they acknowledge the right of every adult person who is of sound mind to choose what shall be done with his or her own body. Consent is agreement from the client for the worker to provide a particular kind of service. Consent can be given verbally, in written form, or may be implied.Legal Ethical and Professional Issues in Nursing Essay

Types of consent

Verbal – the client tells you in words that they want a service or agree to some intervention.
Written – the client signs forms requesting or agreeing to the service or intervention.
Implied – the client implies in some way, for example nods their head, when you ask them if they want you to do something and assists you in the task. For example, you ask a client if they want a shower and they nod their head and start to take their clothes off.
In the case study opposite, Mary has not given verbal consent but has given implied consent because she has held out her elbow to start the procedure.

There are times when consent may not have been granted, for example when someone has had a major accident and immediate care is required to save their life. In this situation the individual is unable to give consent; however, lifesaving care is required and the assumption has to be made that the person would consent to having the emergency care.Legal Ethical and Professional Issues in Nursing Essay

Valid consent

As an aged care worker, you have a legal and ethical obligation to involve your client in decisions about the services they receive and gain their consent before providing any type of care. All people respond better when their wishes are taken into account.

The following elements constitute a valid consent.

Consent must be given voluntarily.
Consent must be informed – the person must be aware of what they are consenting to and the risks involved.
Consent must refer specifically to the actions that will be performed.
The person must have the legal capacity to give consent – they must be mentally competent and over the age of 18 years (where the person does not have the legal capacity to give consent, it may be given by a legal guardian).Legal Ethical and Professional Issues in Nursing Essay

The application of restraint in any health care environment is an imposition on a person’s rights and dignity. Restraints of any kind should only be used as a measure of last resort and for the purpose of promoting and maintaining a person’s health and well being, or in the short term, the health and well being of others.

The professional and legal responsibilities associated with the use of restraint have significant implications for health professionals and organisations. With the exception of emergency situations, medical practitioners are responsible for all clinical decisions relating to the use of restraint, while nurses and other caregivers are responsible for the safe application and management of restraint in clinical settings.

Restraint Defined

Restraint includes any action, word or deed that is used for the purpose or intent of restricting the free movement or decision-making abilities of another person.

Purpose of Restraint

The use of restraint should be viewed as a temporary solution to challenging behaviour or circumstantial factors, and its use should only be considered when all alternative options to address the issue have been explored and deemed inappropriate.

Restraint may only legitimately be used to address the risks a person poses to him/herself, to others or to property. Restraint should never be used for the convenience of staff or to overcome a lack of adequate supervision. Nor should restraint ever be used to punish or negatively reinforce problem behaviours.Legal Ethical and Professional Issues in Nursing Essay

Methods of Restraint

Various types of restraint are used for altering a person’s thoughts, behaviour or physical status. These may be classified as physical, environmental, chemical or emotional restraint. Examples of the most common methods are provided below.

Physical Restraints: Physical restraints include any devices directly applied to a person to restrict movement. Vests, mittens, wrist or ankle straps and zip beds are some examples of physical restraints.

Environmental: A number of environmental or mechanical devices may be used to restrict movement. These include bed-rails, recliner or tub chairs, locked doors or locked facilities.

Chemical Restraint: Chemical restraint involves the use of medications to control or modify an individual’s thoughts or behaviour that may not be related to medical treatment.Legal Ethical and Professional Issues in Nursing Essay

Emotional Restraint: Verbal, non-verbal and physical intimidation constitutes emotional restraint. Such methods of restraint are used to alter or restrict a person’s choice of behaviour or to actively encourage or discourage particular behaviour.


Assault is a wrongful, intentional, statement or action performed by one person that causes another person immediate and actual fear, or reasonable apprehension, of being touched against his or her will in an injurious or offensive manner. The action can be an attempt or a threat to inflict injury or harm. It can be any action that generates apprehension or fear in another. Words and/or gestures could be sufficient depending on the circumstances.

No actual physical injury or contact need occur.

Assault is any credible, reasonably believable threat. It is threatened battery.

If there is any actual contact or touching, battery has been committed.

An essential element in assault is the apprehension of being touched, and that is the only thing needed to prove a claim for assault. There must be an awareness, an anticipation, a knowledge, and a fear of immediate physical harm on the part of the victim. An unconscious or comatose patient could not be a victim of assault.Legal Ethical and Professional Issues in Nursing Essay


Battery is the intentional physical contact with another person in an injurious or offensive manner without that person’s explicit or implied consent.

It is any act of physical contact that is unapproved and unwarranted. It is the actual performance of an act of contact or personal physical touching that is only threatened in assault. The victim need not have any fear of immediate harm for the act to be considered battery.

Battery is the most common allegation involving nurses and intentional torts. There are several aspects of battery that the nurse must be aware of:

First, if the requisite elements of battery are otherwise present, a single touch no matter how brief or how light constitutes battery.
Second, no actual injury need occur. The patient does not have to suffer physical harm or experience pain of any kind.
Third, there need be no fear, apprehension, or awareness of immediate harm on the part of the patient. An unconscious person can be the victim of battery.
Fourth, the unpermitted touching of an individual’s personal effects or of any such objects on that person or in his or her hand constitutes battery. Under the law, any personal item that is connected to an individual in any way is treated as an extension of that individual.Legal Ethical and Professional Issues in Nursing Essay
Fifth, the contact required can be direct or indirect. The victim does not have to be touched personally. If a patient is struck, even inadvertently, by an object in the hands of a nurse, or by one that is set in motion by any action of a nurse, while in the act of a battery, that nurse may be liable.
Treatment without consent is the most frequently alleged act of battery involving nurses. If any health care provider conducts physical examinations, performs diagnostic procedures, or initiates treatments without first obtaining the consent of the patient (when this is necessary, appropriate, and possible) the health care provider can be liable for charges of battery.

For a plaintiff to prove the charge, he or she must provide evidence that he or she did not give consent for the treatment or procedure carried out by the defendant or that the defendant’s conduct went beyond the limits defined by the consent that the plaintiff had given. Or it must be shown that he or she had withdrawn consent prior to the treatment or procedure that was then carried out with disregard of that withdrawal.

Often an allegation of assault and battery will be presented rather than one of negligence. When such a charge constitutes the basis of a lawsuit, negligence need not be proven. The very nature of – the action of – assault and battery provides the basis for a claim. Expert witnesses are not required in such proceedings. State criminal laws and tort laws provide for legal action in cases of assault and battery.Legal Ethical and Professional Issues in Nursing Essay

Duty of care

Duty of care relates to the tort of negligence which recognises that people must take proper care to avoid harm to others. Duty of care refers to the duty (obligation) of all aged care and health care workers to take care when they work with clients.

It is your legal responsibility to take reasonable care and ensure that you provide a proper standard of service to all clients with consideration to their medical, ethical, social and religious needs.

Duty of care is about safety. It means that you must think ahead about possible risks or dangers to clients and make sure you are following correct agency procedures. If you breach your duty of care (meaning if you do not carry out your role with care) you could be charged with negligence and would have to compensate the client for any damages they suffered as a result of your actions or inaction.

What is a breach of duty of care?

Aged care and health care workers can be in breach of their duty of care when:Legal Ethical and Professional Issues in Nursing Essay

care is inappropriately or poorly provided
the client is injured physically or emotionally
medical complications are not properly managed
conditions are misdiagnosed due to carelessness
risks involved in treatment are not explained or managed.
You may be failing your duty of care if you do not:

maintain client confidentiality
listen and respond to complaints and needs
apply appropriate occupational health and safety procedures
follow the policies and procedures of the organisation
follow the standards, ethics or generally accepted principles of your profession or community
report and record information
follow the care plan.

Negligence is the failure to do something that a reasonable person would do under the same circumstances, or doing something that a reasonable person would not do under the same set of circumstances.Legal Ethical and Professional Issues in Nursing Essay

In the context of aged care, the term ‘reasonable person’ means how a competent aged care worker would act. A failure of duty of care towards your client may lead to a finding of negligence. Only a court can decide if someone has been negligent.

Negligence can refer to:

failure to undertake tasks or procedures that you should have completed
actions – things you did that you should not have done because they involved unacceptable risks and caused harm.
There are four essential elements that constitute negligence, often referred to as the 4 Ds:

duty of care – you had an obligation to provide care of a particular standard to a client
dereliction of duty – you acted carelessly and without common-sense, breaching the normal standard of care that society would have expected
damage – the client experienced actual harm or injury
direct effect – the damage was a direct result of your actions or omissions.Legal Ethical and Professional Issues in Nursing Essay
The key points to remember are:

it is not necessary to show that the worker Meant to cause harm – the fact that an aged care worker acted with the best of intentions does not prevent the worker’s actions from being negligent
because it is a matter of common law, the case will be heard in a civil court; many cases however are settled out of court
generally the employer is held responsible for the negligence of staff members. This is called vicarious liability. While it does not exclude individuals from personal liability, it does acknowledge that employers have some responsibility for the actions of their workers.
Here are two common situations where harm could easily have been prevented by exercising due care:

the client falls because the worker does not follow safe lifting practices
the client is burnt because old or faulty equipment is used.
Vicarious Liability Legal Ethical and Professional Issues in Nursing Essay

Briefly, vicarious liability refers to the liability owed by an employer to a claim arising as a result of his employee’s negligence or otherwise at work. In other words, the liability was originally due to the employee’s fault and, because it was incurred in the course of employment, the employer becomes jointly and severally liable to the claimant. ‘Jointly’ is easily understood from its plain English meaning. ‘Severally’ means that the claimant can actually make his claim against either of or both defendants, and he will be able to claim the total of his awarded damages from either even though the total of his claims can only be up to the amount of the awarded damages.

A hospital is therefore very concerned with the liabilities incurred by its employees. Awards for claims against doctors’ negligence are obviously of great amounts and therefore the hospital is often sued instead or additionally as a joint defendant.

This is exactly the reason why a modern hospital should be diligent in its risk management measures. A very major expenditure item in the budget account is payroll. No less, however, are payments in settlement and damages unless risks are well managed.

Scope of practice

The scope of practice of a nurse is that which they are educated, competent and permitted by law to perform. The individual scope of practice of a nurse is influenced by the:

Place of employment
Health needs of people
Level of educational and professional competence of the nurse
What the nurse feels comfortable with performing

Organisation’s policy and procedure requirements.
Supervision of Enrolled Nurses (EN) by Registered Nurses (RN) can be direct or indirect. Supervision is in the form of an accessible RN for support and guidance.Legal Ethical and Professional Issues in Nursing Essay

Direct supervision: the supervisor or RN is present, observes, works with, guides and directs the person who is being supervised.
Indirect supervision: the supervisor (RN) works in the same organisation as the nurse being supervised, but does not constantly observe their activities. The supervisor must be available for reasonable access. Reasonable access will depend on the context, the needs of the person receiving care and the needs of the person being supervised.
It is important to remember, however, that the EN retains responsibility for their own actions and remains accountable for providing delegated nursing care at all times is influenced by the:

Settings in which they practise
Health needs of people
Level of competence and confidence of the nurse
Service provider’s policy requirements.
Supervision of Enrolled Nurses by Registered Nurses can be direct or indirect. Supervision is defined as access, in all contexts of care, at all times to a named and accessible RN for support and guidance.

Direct supervision: the supervisor (RN) is actually in attendance, observing, working with, guiding and directing the nurse being supervised.
Indirect supervision: the supervisor (RN) works at the same facility as the supervised nurse, but does not constantly oversee their actions. The supervisor reasonably accessible at all times. Reasonable access will be governed by the facility policies, the requirements of the person receiving care and the needs of the nurse.Legal Ethical and Professional Issues in Nursing Essay
At all times, however, the EN is responsible for their own actions and remains answerable for the care they provide.


Advocacy is when you speak up for someone else to change a situation or solve a problem. Advocacy is needed when someone’s rights are being overlooked or abused and that person does not feel capable of standing up for themselves without support. You may sometimes need to advocate on behalf of your clients.

Advocacy can involve an informal arrangement where a friend or relative acts as the advocate and speaks up for another person. It can also be a more formal arrangement, where the advocate is a professional person who intervenes on behalf of the client to protect their rights. The advocate’s role is to act as a spokesperson in upholding the client’s rights, to act as a negotiator, to participate in meetings, to monitor services to the client, or to act as an adviser, friend and provider of information.

There are many reasons why clients need someone else to speak up for them. These may include:Legal Ethical and Professional Issues in Nursing Essay

having no power in the situation or feeling helpless
poor health
being dependent
having a disability
a lack of knowledge about how the system works
not knowing their rights.

Documentation is considered as a vital communication tool among healthcare professionals. Nursing documentation is an integral part of clinical documentation and is a fundamental nursing responsibility. Good documentation ensures continuity of care, furnishes legal evidence of the process of care and supports evaluation of patient care. Nurses must balance clinical documentation with respect to legal imperatives. Accurate and complete documentation of client’s symptoms and observations is critical to proper treatment and management. Entries documented on a client’s clinical record are a legal and permanent document.

Nursing documentation is any written or electronically generated information that describes the care or service provided to a particular client or group of clients. Through documentation, nurses communicate to other healthcare professionals their observations, decisions, actions and outcomes of care. Documentation is an accurate account of what occurred and when it occurred.Legal Ethical and Professional Issues in Nursing Essay


In the process of documentation, the nurse needs to consider the following:

Enforce local policies and procedures or protocols of documentation at practice setting and that nurse follows these at all times.
Ensure clear, concise, accurate, complete, objective, legible and timely documentation to fulfil both clinical and legal imperatives.
Exercise professional judgment and apply knowledge and skills in the given situation.
Responsibilities of the nurse

The nurse understands his/her accountability for documenting on the clinical record the care he/she personally provides to the clients.
The nurse documents the care process including information or concerns communicated to another health care provider.
The nurse documents all relevant information about clients in chronological order with date and time.Legal Ethical and Professional Issues in Nursing Essay
The nurse carries out comprehensive, in-depth and frequent documentation when clients are acutely ill, high risk or have complex health problems.
The nurse documents timely the care he/she provides.
The nurse corrects any documentation error in a timely and forthright manner.
The nurse remarks any late entry, if indicated, with both date and time of the late entry and of the actual event.
The nurse indicates his/her accountability by adding his/her signature and title as approved by his/her organization to each entry and correction he/she makes on the clinical record.
The nurse safeguards the privacy, security and confidentiality of clinical record by appropriate storage and custody.
The nurse updates himself/herself with contemporary documentation knowledge.
Open disclosure

Open disclosure is providing an open, consistent approach to communicating with patients after an adverse incident. This includes expressing regret for what has transpired, keeping the patient informed of what is occurring, and providing feedback on investigations, including the measures taken to prevent an event from happening again. It is also about providing information that will ensure improved patient safety. The Australian open disclosure standard is not mandatory, but has been established with active involvement by accreditation agencies and professional bodies and is likely to become the recognized standard of care provided by Australian healthcare staff and facilities.Legal Ethical and Professional Issues in Nursing Essay

Open disclosure is in accord with evolving ethical practices in health which support greater openness with patients and increased involvement of patients in their own care. Improving healthcare safety begins with ensuring that communication is open and honest, and immediate. This includes communication between healthcare professionals and patients and their carers. It also includes communication between nurses, doctors, healthcare administrators, as well as other staff. Nursing facilities must create an environment which encourages the reporting and identification of adverse events so that opportunities for learning can be identified and acted on. Also. there is a need to move away front blaming individuals to focusing on establishing systems of organisational responsibility.

Disclosure is required where a patient has suffered some harm (physical or psychological) as a result of treatment. This may be a recognised complication or be a result of human or systems error. As soon as an event is noticed, you should ensure patient safety, perform any immediate care interventions required and inform your manager. There is no conclusive evidence that open disclosure increases or decreases litigationt; however, open communication following an adverse event will:Legal Ethical and Professional Issues in Nursing Essay

improve patient safety through improved systems learning
increase trust between patients and clinicians
assist patients in becoming more active participants in their care.
If the nurse notices harm caused under the care of another medical professional, they should always speak first to their nurse manager and the senior clinician of the team involved. If these members of staff are unwilling to initiate the disclosure process refer the matter to the person responsible for clinical risk or medical administration. Fear of implicating friends, colleagues and members of the team is a significant barrier to open disclosure. However, there is greater chance or causing problems by not disclosing that something has gone wrong. To do so could be involving friends in deceitful or fraudulent behaviour by ‘covering up’.

A coroner is an investigator of sudden, unexpected, unexplained, violent or suspicious deaths.

In Australia they are judicial officers and ‘inquisitors’. That is, they conduct inquiries into deaths that are reportable to them under legislation. Because of this, their roles are very much more active than those of most judicial officers.Legal Ethical and Professional Issues in Nursing Essay

The primary function of a coroner is that of fact-finder. Because coronial proceedings are inquiries, not trial, coroners are not bound by the rules of evidence or procedure. Like other investigators, coroners may inform themselves in any way that is relevant and appropriate prvided that they are fair to any party with an interest in the outcome of the investigation.

Coroners have extensive powers to conduct investigations, to direct and control those inquiries, and to make findings. They may order medical medical examinations, request police officers to conduct enquiries, require production of documents, request expert reports, issue orders enabling police officers to search premises for evidence relating to deaths, subpoena witnesses and hold public court hearings.

Coronial work is multi-disciplinary. A coroner is not a scientist or a detective but manages a team of investigators and other experts.

In most Australasian juristictions, coronial powers are exercised by specialist coroners with the status of a judge or magistrate.

Coronial systems have a number of purposes:

To explain how and why sudden deaths have come about.
To allay suspicions of fears.
To hold public agencies, such as police, prisons and health services to account for deaths of people who die in the state’s custody or care.Legal Ethical and Professional Issues in Nursing Essay
To improve our systems of public health and safety with a view to preventing future deaths.
To conduct investigations in public when appropriate.
To demonstrate the value democratic societies place on individual human lives.
To reinforce the rule of law in democratic societies.
The coronial process

The coronial process generally follows a recognisable pattern in all jurisdictions:

A person dies suddenly or unexpectedly or is missing and suspected of having died.
The death is observed or discovered and notified to police or to a doctor.
If the death appears to be ‘reportable’ under the Coroners Act, the police officer or doctor will organise for the body to be transported to the mortuary.
A report is made to the Coroners Court or the local coroner by the police. If the person has died in hospital, an additional report is usually made.
The coroner and the local forensic pathologist discuss the case and how the cause of death can be established.
The coroner then makes a decision and issues directions to the forensic pathologists (and sometimes to others such as forensic dentists, anthropologists, etc) to conduct post mortem medical investigations.
If the next of kin object to an autopsy or other post mortem medical investigations, the coroner will make a decision on whether to uphold the objection or not.
The coroner will also consider whether to request a police investigation or some other form of investigation (if that is not already underway).
The coroner may also be involved in framing the issues for investigation and planning any operations or further investigations that may be required.
When the investigations are complete, a brief is given to the coroner. The coroner then decides whether or not to conduct an inquest.
If an inquest is to be conducted, the coroner will usually brief a `Counsel Assisting’ who will have responsibility for organising the inquest.Legal Ethical and Professional Issues in Nursing Essay
Working with Counsel Assisting, the coroner identifies the issues to be investigated and the witnesses to be called.
The coroner also identifies any ‘persons of interest’ and any persons whose interests may be affected by the inquest. They will be notified and usually provided with a copy of the coroner’s brief.
The inquest is then prepared. This may include holding directions hearings, issuing subpoenae, taking views and conferences with Counsel Assisting.
The inquest is conducted.
Findings are made (if possible) as to whether a person has died or not or, if a death has taken place, as to the identity of the deceased, the date and place of death, and the physiological cause of death and the circumstances in which the death took place.
The coroner may also make recommendations concerning lessons learned in relation to public health or safety or in relation to disciplinary action that might be taken concerning persons involved in the death of the deceased person.
Deaths that may have been caused by or contributed to by neglect or inadequate or delayed efforts by the person’s carer to obtain treatment should be reported and arguably may be regarded as unnatural under the deprivation category.Legal Ethical and Professional Issues in Nursing Essay

Deaths should still be regarded as unnatural even when the causative event occurred a considerable time before the death. In those cases there is frequently some complication that actually causes the death. If it is attributable to the initial injury the death can be said to be unnatural and therefore reportable.

Violent and unnatural deaths

Violent deaths are caused by trauma – accidents, suicide or homicide. The death need not necessarily be immediate. Sometimes people die of complications that originated with a traumatic injury.Legal Ethical and Professional Issues in Nursing Essay

Other forms of unnatural deaths frequently seen by coroners are:

overdoses – accidental or intentional – with drugs, alcohol or poisons;
deaths due to physical factors such as exposure (hypothermia), electrocution, overheating, smoke inhalation, burns; and
deaths due to deprivation of the necessaries of life (air, food or water) asphyxia, drowning, dehydration, starvation. Sometimes these are due to accidents, sometimes intentional (suicide, assisted suicide, homicide), sometimes due to negligence.
Elderly people in care

Life expectancy has increased and will continue to increase due to advances in health care. Paradoxically many elderly people often live longer now but are unhealthy for longer periods than in previous generations. The elderly, particularly those suffering chronic illness, are highly vulnerable to neglect and abuse. ‘Elder abuse’ is thought to be under-reported and is a growing concern. This is especially so because it is often difficult to distinguish between a natural process of deterioration and the effects of neglect or abuse.Legal Ethical and Professional Issues in Nursing Essay

The human rights of the elderly are just as important as those of other vulnerable populations in our societies. Coroners have a special responsibility for them.

Disabled people in care

Disabled people are also frequently vulnerable to neglect or outright abuse. Disabled people are not an homogenous group but have varied abilities and needs and vulnerabilities. There is considerable evidence that disabled people are subjected to sexual and physical abuse or neglect at higher rates than members of the general community.”

Depending on the circumstances, factors such as low mobility, limited communication skills, high dependence on non-family members for personal care, and the use of shared accommodation services may provide the environment or opportunity in which neglect, abuse and outright exploitation may occur. For these reasons, the deaths of disabled people are reported to coroners.Legal Ethical and Professional Issues in Nursing Essay