Legal Issues
In Primary Care Nursing
Gaynor Kynaston
Solicitor
Legal and Risk Services
Legal and Risk Services
 2134 Clinical Negligence Claims for NHS in Wales
 190 ‘Putting things right’
 27 solicitors, 4 trainees, 3 clin neg paralegals
 Claims involve a variety of healthcare professionals
Aims and objectives
 Potential legal issues arising from nursing practice in
particular titration
 Standards of medicine management
 Consent/Capacity
 Record Keeping
Potential legal problems
 Civil claim
 Criminal action – assault, witness
 Inquest
 Complaint to professional regulatory body, NMC
Professional Accountability
 Statutory Duty
 Meet standards laid down by Professional Body
 Act within professional competence
 Act within the law
 Responsible for own actions and actions of others
Work within the law
 Consent of employer
 Vicariously liable
 Appropriate qualifications
 Appropriate training
 Work according to policy and protocol
Civil Claim
 Pre-requisites to a successful civil claim
 Owe patient a Duty of Care
 Breach of Duty of care occurs
 The breach Causes harm to the patient
 Material Contribution – Bailey v MOD & Another
[2008] EWCA
Duty of Care
 All healthcare professionals treating a patient owe a
duty of care to them
 The test of when that duty is breached is a peer test.
The law will judge your practice against that of a
responsible body of practitioners with your
qualification – Bolam v Friern Hospital
Management Committee [1957]
Sources of breach of duty
 Incorrect act
 An omission
 Delay
 Invalid consent
 Record-keeping
Examples of breach of duty
 MMR given instead of Hib
 Neuropathy following venepuncture
 Pt given follow up treatment for only 1 month rather
than a year (breach of duty - record keeping)
 Iatrogenic injury
 Delay in referral to hospital led to cauda equina
symdrome
 Script for atropine given to wrong patient-glaucoma
Material Contribution - Bailey
 Exploration of common bile duct.
 Post –op: no recovery chart, no records following
transfer to ward, no records of review until 8am next
morning. Deteriorated ? Post op pancreatitis.
 Acute renal failure, respiratory failure, acute
pancreatitis
 Trans Portsmouth – Gastroscopy – further surgery
due to bleed – now septic
 Made steady progress initially – PEG and oral fluids
Bailey cont’d
 Vomited – aspirated – arrested – permanent brain
damage
 Held: Aspirated due to weakness – weakness due to a
combination of lack of rescusitation following first
procedure and pancreatitis.
 Had she been adequately resuscitated she would have
been stronger and not lost gag reflex.
 If negligence more than negligible then material
contribution established
 Claimant can recover in full
NMC Code of Conduct
 Provide high standard of care at all times
 Personally accountable for your own actions
 Always act lawfully
 Ensure you obtain consent before you begin any
treatment or care
 Be aware of the legislation surrounding mental
capacity
 Delegate effectively – competence, standards,
supervision and support
When is consent necessary
 For every examination, investigation and treatment
 Written - Verbal – Implied
 You will need to explain the method of titration to the
patient to give them an opportunity to raise any
concern, could be by way of leaflet that you go
through with them
Who should obtain Consent
 Usually the individual performing a procedure should be
the person to obtain consent. In certain circumstances,
you may seek consent on behalf of colleagues if you have
been specially trained for that specific area of practice.
 Obtaining consent can be delegated providing
 Anyone you delegate to can carry out your instructions;
and
 The outcome of any delegated task must meet the
required standard. (NMC: Guidance on consent)
Valid Consent
 Capacity
 Informed
 Voluntary
 Continuing
Capacity to consent
 Mental Capacity Act 2005
 Over 16
 Presumption of capacity s1(2)
 If pt has capacity – bound by decision however
irrational
 Record advice given
 Get pt to sign – record any refusal to do so
 Countersignatory
Medicines Management NMC
 Standards for Medicine Management (2012) –
Document governing the supply and administration
of medicines
 Covers
 Titration: standard 13
 Delegation: standard 17
 Students and unregistered staff: standards 18 and 19
respectively
Titration
 Where medication has been prescribed within a range
of doses, it is acceptable for Registrants to titrate
doses according to patient response and symptom
control, and to administer within the prescribed
range.
 Registrant must be competent to interpret test results
and assess patient
 Record Keeping
Delegation to other members
of the team
 Registrant is “responsible for the delegation of any
aspect of the administration of medicinal products and
they are accountable to ensure that the patient, carer
or care assistant is competent to carry out the task”
 This will require education, training and assessment
of the patient, carer or assistant. Competence should
be assessed and reviewed periodically. Records of
training received and outcome of assessments should
be made and be available.
Unregistered practitioners
 Unregistered practitioners are those providing care
who are neither registered or licensed by a regulatory
body and have no legally defined scope of practice
 In delegating the administration of medicinal
products to unregistered practitioners, it is the
registrant who must apply the principles of
administration of medicinal products. They may then
delegate an unregistered practitioner to assist in
ingestion or application
Assessment: standard 9
 As a registrant, you are responsible for the initial
assessment and continued assessment of patients who
are self administering and you have continuing
responsibility for recognising and acting upon
changes in a patient’s condition with regards to the
safety of the patient and others.
Confidentiality
 Duty
 Maintain it unless
-Consent
-Best interests
-Statute/regulations DPA 1998
-Court Order
-Public interest
Record keeping
 Part of your duty of care to your patient and as
important as administering treatment
 Poor record keeping leads to unnecessary claims
against NHS bodies
 Poor record keeping makes claims difficult to defend
 Judged by standard of records
Summary Checklist
 Can I demonstrate my competence to my patients, my
manager, my professional body or a lawyer?
 Work within your competence; record your learning
in a portfolio; review your recording keeping
Relevant documents/legislation
Documents
 The Code: Standards of Conduct, Performance and Ethics for
Nurses and Midwives (2008)
 Standards for Medicine (2010)
Legislation
 Medicines Act 1968
 Misuse of Drugs Act 1971
 Misuse of Drugs Regulations 2001
Legal and Risk Services