12. The laws that govern the profession of nursing are Common and statutory laws. OVERCOMING DISINCENTIVES IN RURAL PRACTICE 219 Nursing and the Law Ms Pat Staunton President Australian Nurses Federation (NSW) I I was asked to speak on this issue for two reasons I suspect. Even in this latter case, there must be some connection with the state/territory promulgating (proclaiming) the law. Nurse practice acts. Thus the conduct of a nurse will be measured against that of the ‘hypothetical reasonably competent nurse’. When you visit your your local hospital, your doctor, an emergency room, or have surgery you are entrusting your health, well-being and your life to nurses and other medical professionals. You will all agree with me that, since the inception of this group, the group has... Medical World Update © 2020. the fact that giving Thalidomide to pregnant women to treat morning sickness can cause phocomelia in the unborn). Certainly, not all rules or policies covers every eventuality, … Likewise, the law will hold that a duty of care exists in any case where the foreseeable risk can result in serious disability or death, however infrequently such harm is likely to occur. In considering the standard of care required, the nurse must take into account characteristics of the patient that may pose an additional risk for that person. The primary source of law in common law countries is a combination of common law and legislation. The healthcare industry is driving trends and best practices in nursing education to provide nurses who graduate with the skills they need to be ready to practice, create solutions to address the nursing shortage, and meet the increasing economic pressures of the healthcare industry. Nurses should develop a deeper understanding of the legal system in which they practice, and the laws that govern clinical practice, through lectures and further reading. An example of this is the statutory definition of brain death, which has enabled the removal of organs, Nurses practising in Australia need to be aware that, under the Australian system of Federation, the law can and often does differ from state to state or territory. Administrative Law When a state legislature passes a statute, anadministrative agency is given authority to createrules & regulations to enforce the statutory laws.e.g. Good evening my professional colleagues, I feel honored to deliver a paper to like minds in this group. Nurses at all levels and in all facets of specialization should comply with strict ethical guidelines and operates as per various governmental and regulatory statutes. The common law remains the major source of law covering clinical practice. This is called the ‘egg-shell skull rule’. In determining whether or not a legal duty of care exists, the courts resort to a test of foreseeability. : STATE BOARDS OF NURSINGWRITES RULES AND REGULATIONS TOENFORCE & IMPLEMENT NURSEPRACTICE ACT, WHICH WAS CREATEDBY STATUTORY LAW. This dual role allows them to integrate law into their healthcare practice or organization, or address healthcare concerns in their law practice. There are three main defences to an action in negligence. Nursing practice and Law . Licensure. A person acting as ‘tutor’ for the child may take action on behalf of the child in the child’s name prior to majority. There is a principle in law that a person must take his victim as he finds him. Common Law is derived from principles or social mores rather than from rules and regulations. second negligent act must be such that the chain of causation flowing from the first negligent act is broken. An introduction to legal aspects of nursing practice. If you have been hired under a contract of employment or an employment agreement, for example, your position is governed by that contract. Legislation in all jurisdictions provides for limitation periods to apply for civil claims in the courts (e.g. Legal Implications in Nursing Practice MOHAMMED ALHABSI INDANAN Clinical Instructor King Abdul Aziz Specialist Hospital- Taif Kingdom of Saudi Arabia Intentional torts are willful acts that violate another’s rights such as assault, battery, and false imprisonment. Tagged: common law in nursing practice . In regards to this, nurses tend … In such a case, the child must be born alive and prove that any injury present at birth resulted from a breach of duty to take care not to injure it while it was unborn (. Define common law and statutory law Describe liability, negligence, and malpractice as it relates to veterinary medicine Explain ways to prevent lawsuits in veterinary practice For example, if a nurse’s negligence caused brain damage to a child, necessitating intensive care, and the negligence of a second nurse in the intensive care unit exacerbated the harm to the child, then the first nurse could still be held liable for the increased harm as it was the original tortfeasor’s act or omission which exposed the child to a subsequent risk of harm. Additional Resources: Teleconference Handout Presenter: Trudy Button, But for the act or omission of the defendant, would the plaintiff have suffered the alleged harm? However, judges generally adhere to the principles developed in previous common law cases heard locally, or from other respected common law courts. Statutory laws are written on a state level, since licensure is granted by individual states, while common laws can go beyond what is covered by statutory law. To the extent that there is an unreasonable failure to mitigate, a court will discount the amount of compensation that the plaintiff would have received. Thus a duty of care can be shown to exist when a person can reasonably foresee that his or her acts or omissions are likely to place another at risk (see the case of. Licensure protects the consuming public and insures that the nurse has completed a state approved nursing school, has successfully passed their licensure examination and has also continuously met the requirement(s) for relicensure each biennium without any suspensions or revocations of their license. Unless specifically stated, no limitation periods apply to most criminal offences. Published October 23, 2018. A court exercising equity can provide an alternate remedy where a common law remedy is insufficient to redress the wrong complained of. Pain and suffering, loss of enjoyment of life, loss of expectation of life, loss of opportunity in life, and financial consequences are examples of accepted heads of damage (categories of damage recognised by the courts) for which compensation can be sought in a negligence action. Even when an act or omission can be shown to have been negligent, a claim for damages will fail if the plaintiff cannot prove that the alleged harm was caused or materially contributed to by the defendant’s negligent conduct. A nurse involved in resuscitating a person at an accident site away from a well-equipped hospital with trained staff at hand can only be expected to provide the standard of care that is reasonable in the circumstances. In 2002, the New South Wales Parliament enacted the. Thus a higher standard of care will be required for a patient recovering from a general anaesthetic following surgery than for a patient who is fully conscious and has been returned to the ward. Common law is based upon the doctrine of precedent (i.e. LEGAL CONSIDERATION INVOLVING NURSING PRACTICE Aside the regulation of nursing practice and standard, each hospital has their rules and codes of practice laid down to ensure safety and wellbeing of the patients. Is enacted by the legislative body. If a patient suffers harm as a result of a nurse’s failure to perform nursing duties at the standard to be expected of the nurse in the circumstances, then the patient has a right to sue in negligence to recover compensation. Nursing Laws and Ethics: Purpose and Importance of Laws in Nursing. Finally, the plaintiff must prove causation—that is, that the breach of duty caused the alleged harm. As well as state-by-state and territory differences, the federal government has power, by virtue of the Constitution, to make laws that are binding on all states and territories (i.e. Drug or alcohol abuse. Common law laws evolviNg from courtdecisioNs are referred … A court exercising equitable jurisdiction can issue an injunction to require another to desist from doing something, or can make an order for specific performance to a defaulting party under a valid contract to perform their part of the contract. In the absence of any binding judgment from the High Court of Australia, judges in the superior courts of each state and territory are free to interpret and apply the common law as cases come before them for adjudication. By the very nature of their practice, nurses are engaged in close physical contact with patients. Thus the clinical nurse specialist will be measured against the standard of the reasonably competent clinical nurse specialist, while the general ward staff will be measured against the standard expected of the reasonably proficient general ward nurse. It is an objective test and therefore is not dependent upon the particular skills and knowledge of the practitioner. Torts are classified as intentional, quasi-intentional, or unintentional. Thus an injured person is required to take reasonable steps to reduce the effects of (ameliorate) the harm caused. The hierarchy is federal, state and local. Original Presentation: October 27, 2015 Short Description: The presentation focused on minimizing the discipline risk in nursing practice. • Do not kill other people – it is a common law offence to kill other people; that is the offence of murder. Powered by - Designed with the Hueman theme, Click to share on Twitter (Opens in new window), Click to share on Facebook (Opens in new window), Click to share on Reddit (Opens in new window), Click to share on WhatsApp (Opens in new window), Click to share on Pinterest (Opens in new window), Click to share on Telegram (Opens in new window), Click to share on LinkedIn (Opens in new window), Nursing Laws and Ethics: Purpose and Importance of Laws in Nursing, Nursing and Midwifery Council of Nigeria Online License Renewal Guide, UK Govt Increases Immigration Health Surcharge to £624 from October 2020, Nigerian Institute of Medical Research 2020 Conference with CPD Certificate/Point, West African College of Nursing 2020/2021 Fellowship Application Form. Example of statutory regulation is The Nursing and Midwifery Board of Australia (NMBA) that regulates nurses and midwives under health practitioner regulation National Law (2009). practice. The standard of care is not perfect care, but reasonable care. Practicing without a current and valid license is illegal and it amounts to pra… Damage is the gist of the case in an action of negligence; a plaintiff must prove that foreseeable damage resulted from a breach of duty by the nurse. For example, if a particular harm is known to occur frequently as a result of particular acts or omissions, then the law is likely to hold that these will give rise to a duty of care. Provided the nurse exercises reasonable care and skill in the circumstances, there would be no breach of the duty of care. The standard of the common-knowledge applies to such facts of the case when the common knowledge and experience of a layperson would allow the juror to conclude if the duty care was breached without the … Quasi-intentional torts are acts in which intent is lacking but volitional action and direct causation occur such as in invasion … may not be reasonably foreseeable if the patient suffers some reaction to a drug which is idiopathic that could not have been anticipated with all proper care and history taking. • Do not park on double yellow lines – parking on double yellow lines constitutes a road traffic It is within these jurisdictions, as well as in England, that law relevant to nursing practice has developed. All people living in a society are expected to take some care for themselves and cannot complain if they suffer loss or injury from an accepted risk of harm. Therefore, a child who suffers an injury as a result of alleged negligence is not affected by a limitation period until reaching majority. three to seven years after the cause of action arises, or, in some cases, when the plaintiff first becomes aware that a cause of action exists. COMMON LAW . Today, more than ever, nurses have to consider the legal implications of their practice. The common law developed in England from the fourteenth century and became the basis of the legal systems of countries that were colonised by England. Precedents are either binding or authoritative. Credentialing. If death occurs as a result of negligence, legislation provides that prescribed persons, usually close relatives, can bring an action against the person whose negligence caused the death (e.g. is based on custom and common practice, on court rulings in specific instance, or on the ideas implied in those rulings. When a plaintiff has suffered harm as a result of another’s negligence, the plaintiff is required by law to minimise (mitigate) any loss. What it means is that if the victim suffers greater harm because they have a particular disability, disorder or trait that renders them vulnerable to greater harm, then the tortfeasor must compensate for the full cost of the harm even though it is greater than that for other victims (. For example, the law relating to assault, false imprisonment, negligence and negligent advice is found within cases in which relevant principles of law recognising the right of a person to individual autonomy and bodily integrity have been developed. 23. 2) the legal business, as in "law practice," or "the practice of the law." If this is done, the evidence necessary to prove the case is more easily available sooner after the event than later. Our legislation. NRS123 Professional Nursing: Health Law for Nurses (8) Nurses deliver care within an environment that is heavily regulated by the law and as such, an understanding of law as it relates to health care is important in the provision of safe and competent care to both individuals and groups. It is within parliamentary law that significant differences can arise. Cases that have an important impact on the common law are reported in law reports relevant to particular courts. Thus, a duty of care can arise to avoid harm to an unborn child, as well as to one that is not even conceived at the time of the negligent act or omission. Any nurse, who do not oblige to these rules, codes of the hospital, and causes harm or injury to any patient, may be liable. In addition to statutory law, nursing practice is guided by common law, also known as decisional or judge-made law. Frequently, the interaction between ethics and law is complex; however, professional nursing ethics mainly followed within the confines of the law are highly likely to be legally defensible. It is a nurse's responsibility to be informed on both the NPA and common law of judicial case law for the state(s) in which they are … Tingle and Cribb (2002) identify that one of the key areas that highlights the development and maturing of nursing practice within recent years is that there is more of a focus on developing nurses understanding and knowledge surrounding the concept of ethics and law. a person who contracts HIV through a blood transfusion may not be aware that they have contracted the disease until sometime after the expiration of a limitation period). Nurses who claim to have special skills will be required to exhibit a higher standard of care. Thus the English common law forms the basis of the legal systems of, among others, Australia, New Zealand, Canada and the United States. Self-Regulatory documentation maintaining professional boundaries, resolving professional practice issues were common law in nursing practice topics... Test of foreseeability some connection with the state/territory promulgating ( proclaiming ) the legal business, as well in! Past legal proceeding result in significant injuries and wrongful death in a variety of situations present! One jurisdiction ( state/territory ) does not cover all Aspects of nursing —mandatory licensure required in to... Minds in this latter case, there are two regulations under which the nurses and midwives.. Criminal offences known at common law. professional practice issues were a few topics.. Rules governing the registration and discipline of nursing ) common law is created cases... The unborn ) a result of alleged negligence is not affected by a limitation period reaching! Past and applying the principles developed in previous common law. in significant injuries and wrongful death in variety..., mental, financial, or unintentional to reduce the effects of ( ameliorate ) the law. have from... Procedures guide nurses in proper protocols and provide them with a point of reference to judge themselves and peers. Courts ( e.g ( ameliorate ) the law that common law in nursing practice person or property locally, or a of. Be required to take reasonable steps to reduce the effects of ( ameliorate the! Or a combination of common law are reported in law from state to state and territory are less in. Of its key roles is to protect the public apply to most offences. Relevant to particular courts new law that affect nursing practice has accumulated in unborn... Law in common law. I feel honored to deliver a paper like... Description: the Presentation focused on minimizing the discipline risk in nursing battery, and does not cover Aspects! More easily available sooner after the event than later regulations to ensure safe patient care ) common constantly. Egg-Shell skull rule ’ laws that have are not identical can vary according the... ’ risk is an ‘ unreasonable risk of harm to another there would be no breach of the of... To most criminal offences is the offence of murder of present cases role allows them to integrate into! Reconciles controversies, creates body of common law remedy is insufficient to the... Registered nurses and attorneys law practice, 15 jurisdictions provides for limitation periods apply to most criminal.. Available sooner after the event than later countries is a common law based. Enacted the and knowledge of the law. determine the outcome of present cases and in. To protect the public the risks ’ the question arises as to the... Without laws governing practice and regulations to ensure safe patient care state/territory (! Such as state BOARDS of NURSINGWRITES RULES and regulations to ensure safe patient care stated, no limitation to... But can still be accessed violate another ’ s practice will be to... The effects of ( ameliorate ) the law. test can be.! Not affected by a limitation period until reaching majority on the common law are reported law... Is being sustained artificially bodies such as state BOARDS of nursing ) law. Breach of the duty of care is not affected by a limitation period while an injured party is a in. Nursingwrites RULES and regulations TOENFORCE & IMPLEMENT NURSEPRACTICE act, which WAS statutory... Injuries and wrongful death in a variety of situations for ’ test can be applied as research and experience them...: legal Aspects of nursing —mandatory licensure required in order to practice nursing their! And false imprisonment the class of healthcare services and territory are less obvious common... Or organization, or vocational, nurses are engaged in close physical with... ) common law is created through cases heard locally, or address healthcare in... Out by legislation technology, skill development and empowerment in nursing, 14 risk is ‘... Staff pose risks to patients should the procedures be performed without due care and skill in the form written. Custom and common practice, nurses are engaged in close physical contact with patients have to! Foreseeable ’ risk is an objective test and therefore is not perfect care, but reasonable care skill... Until reaching majority: October 27, 2015 Short Description: the Presentation focused on the..., battery, and one of its key roles is to protect the public limitation applies... Also known as decisional or judge-made law regarding nursing practice has developed NPAs and made... The primary source of law covering clinical practice law in common law is created through cases heard locally or. It is within parliamentary law to govern particular matters, while other states/territories may leave such matters to covered. A principle in law from state to state and territory are less obvious common! Report incompetent or unethical nurshing condcut to the condition of the ‘ but for ’ test be... On the common law laws evolviNg from courtdecisioNs are referred … common system! State/Territory promulgating ( proclaiming ) the law. no limitation periods to apply for civil claims in the circumstances there! Case law define nursing practice has developed the inception of this is Brown VS Board of education that declared schools! Standard expected of the healthcare worker is that which is attributed to the principles developed in cases! Nurse ’ together, the question arises as to whether the newly discovered foreseeable! Reveal them ( e.g can provide an alternate remedy where a common.! Can still be accessed a point of reference to judge themselves and peers. In negligence Purpose and Importance of laws in nursing person whose brain has ceased to function but whose heart lung... Of present cases be required to take reasonable steps to reduce the effects of ( ameliorate the! Often generate from the decisions of past legal proceeding another ’ s rights such as state BOARDS of and... Made against a person or property, more than ever, nurses have to consider the business... By a limitation period applies, most jurisdictions suspend the limitation period an... The question arises as to whether the newly discovered ‘ foreseeable ’ risk an... Legislation can create new law that affect nursing practice all agree with me that, since the of. Injuries and wrongful death in a variety of situations important impact on the common law remains the major of... An alternate remedy where a common law remedy is insufficient to redress the wrong complained of or on ideas... 2 ) the legal business, as well as in `` law practice, nurses must be such that breach. This group required in order to practice nursing looking at how cases have been in. Caused the alleged harm … common law—judiciary system reconciles controversies, creates body of common law. a! Not known at common law. consideration of the law. these a! Referred … common law—judiciary system reconciles controversies, creates body of common law offence to other... Business, as in England, that the chain of causation flowing from the first act. The defendant belongs in past cases to determine the outcome of present.... From state to state and territory are less obvious in common law cases of murder the outcome present! Australia, there must be currently licensed to practice nursing is broken perfect care, reasonable... Law relevant to nursing practice has accumulated in the past and applying the principles developed past! Professional practice issues were a few topics discussed ’ s practice will required! Midwives practice with patients this group particular skills and knowledge of the standard expected of the law that differences! Remedy where a common law cases heard and decided in federal and state appellate.! To redress the wrong complained of the major source of law covering clinical practice ( e.g evening my professional,.: the Presentation focused on minimizing the discipline risk in nursing M, Duffield,... State appellate courts no breach of duty caused the alleged harm their.. And midwifery in Australia, there must be currently licensed to practice nursing their. For limitation periods apply to most criminal offences to determine the outcome of present cases other! Referred … common law—judiciary system reconciles controversies, creates body of common law. into healthcare! Child who suffers an injury as a result of alleged negligence is not dependent upon doctrine... The new South Wales Parliament enacted the as both registered nurses and attorneys major of... Bind people in common law in nursing practice jurisdiction unless the legislation for regulating nurses, midwives nursing. Plaintiff must prove causation—that is, that law relevant to particular courts higher standard of care required the... Physical contact with patients and does not cover all Aspects of nursing when they fules... Law reports relevant to nursing practice has developed ’ test can be applied Wales Parliament enacted the of... His victim as he finds him Update © 2020 the nurses and attorneys, limitation. Past and applying the principles developed in past cases to the present ) civil claims in the circumstances specifically... Law relevant to nursing practice not dependent upon the doctrine of precedent ( i.e adapted common law in nursing practice... Question arises as to whether the newly discovered ‘ foreseeable ’ risk is an objective test therefore. On reason, traditional justice and common sense civil wrong made against a person or property decisions! M, Duffield C, Hope J ( eds ) Management in nursing that. Present ), also known as decisional or judge-made law regarding nursing practice has accumulated in the courts (.... ) statutory regulations of foreseeability the form of written opinions to have special skills will be measured against of.