The Functions of the Nursing and Midwifery Board of Australia (NMBA) are set by the Health Practitioners Regulation Law and enforced in each state and territory to regulate the practice of nursing, with one critical role to protect the public. The nursing practice is intertwined with legislation. To provide safe and quality healthcare, nurses must be cognizant of the law, regulation, policies, and professional standards that guide nursing practice (Nursing and Midwifery Board, 2020). This is related to the professionalism of the registered nurses while tending to the care of the patients and the care should be such that it is safe and appropriate. For the safety and quality care, there is a provision of national safety and quality standard for healthcare (Australian Commission on Safety and Quality in Health Care, 2020). There are eight standards with which everyone involved in the healthcare of a person should uphold and this includes, doctors, specialists, allied health professionals including nurses and the healthcare facilities. When these standards are not upheld, it can lead to the breach of ethics and can have the legal implication of the same.
Legal frameworks inform nursing practice in various aspects of registration statutes, code of conduct, and the civil requirement in common law, industrial requirements, and criminal sanctions. The legal frameworks have been shaped and have shaped the image of nursing in Australia (Chiarella & Mclnnes, 2019). The proper role of law is contestable, but it has played an ever-increasing role in regulating medicine (White et al., 2017). Nurses in practice work as a part of multidisciplinary team, within their scope of practice to optimize clinical outcomes, enhance productivity and value for money for health services. Being skilled and regulated professionals, nurses are rated as the most honest and ethical professionals in Australia, for twenty-two years, providing an opportunity to capitalize on the nursing role to improve healthcare in Australia (APNA, 2017). Despite these regulations and achievements, nurses are still face with legal issues in everyday practice. The case of Mrs. Smith is a classic example of the legal issues that nurses face during their practice. A series of events consequentially led to the demise of Mrs. Smith in intensive care, and the son threatening legal action against the hospital and Aged Care facility for negligence and reporting the accident to the Coroner. This article will identify and discuss three legal issues raised in the case study.
Clinical activities and service development are recorded and documented to assist in the delivery and management of care services. The Department of Health established My Health Act, 2012 with the Australian Digital Agency as its operator. My Health Record impacts all Australians and includes all electronic summaries of an individual's health and facilities access to this information to the different health professionals involved in person's care (Australian National Audit Office, 2019).
The Australian Commission on Safety and Quality in Health Care sets the standard to provide a nationally consistent level of care that can be expected by the public from a health service organization. The Commission has set the Clinical Governance Standard to ensure that healthcare providers have a responsibility towards the community to provide and ensure the level of care that is patient-centric, safe, and effective. The Commission has given overarching standards in conjunction with Consumer Standards by recognizing the importance of governance, patient safety system, clinical performance, leadership, culture, and patient care environment in the delivery of high-quality care (Australian Commission on Safety and Quality in Health Care, 2020).
The National Safety and Quality Health Service (NSQHS) Standards under the Criterion, Patient Safety, and Quality System statement mandates that organizations actively manage and improve patient safety and quality of care. The criterion, Medication Safety Standard statement indicates that health organizations prescribe, administer, and monitor medication delivery such that adverse events are minimized in such a manner that it can help in increasing safety of the patient. The intention is to ensure that the appropriate medications are safely prescribed, dispensed, and patients are well-informed of the medicines they are given, their benefits, and potential risks.
The criterion, Documentation of Patient Information Statement indicates that a patient's best possible history is documented when starting care. It involves documentation of the best possible information concerning allergies, medication history, and adverse drug reaction (Best possible medication history and medication reconciliation, BPMH) available to the clinicians. Action 4.5 states clinicians take the best possible medication history, documented in health care records as early as possible. Action 4.7 states that there should process to document the patient history of medication allergies and adverse drug reactions in the healthcare record on presentation. The intention is to minimize medicine-related risks by documentation. It is essential to record the type of reaction that the patient experienced, the severity, and its management at the time. There should also be alert criteria to indicate histories of allergies and adverse drug reactions such as a wrist band or alert sticker.
In the case of Mrs. Smith, her BPMH was mandatory when initiating care for the chest infection. The documentation would have included her history for penicillin allergy, its severity, and management during previous incidences. Also, there should have been alert criteria indicating her allergy in the electronic record systems and a physical identifier such as a wrist band. In this case, documentation protocol was violated as mentioned above and it was not upheld to the standards of NSQHS for promotion of patient documentation and safety concerning medication-related risks. Nurse Florence, as a registered nurse, while taking charge from the general practitioner should have verified the medical chart of Mrs. Smith thoroughly and deficient areas should have been rectified and this would have brought contraindications of the drug to notice. According to National Allergy Strategy (2019), the major causes of drug allergy deaths arise from failure to check medical records, failure of staff to pass important information, failure to prominently label the patient and failure to have noted at the times of patient contact.
From the case study, it is seen that the general practitioner failed to document and communicate the information. Conversely, if the registered nurse, Florence when going through the medical records before the administration of the drugs would have found the information missing. This was done after the development of an allergic reaction when the records were checked by the nurse. Thus, even if the information was recorded, Nurse Florence would not have seen it and would have administered the drug. Regarding the NSQHS, Nurse Florence had a duty to inquire and check for consistency from Mrs. Smith about her BPMH before administration of medication. For instance, upon checking when the nurse noticed that information was missing she could have asked and confirmed the status. Also, if it was recorded as no known allergies then a question to affirm “it says here you no allergies?” would have been helpful in the rectification of the mistake. The failure to document penicillin allergy allowed its administration, arguably leading to a series of events that led to Mrs. Smith's death.
According to Barton et al. (2012), medication safety is a complex outcome of processes involving doctors, pharmacists, nurses, and patients. About 2-3% of admissions in Australia result from medications error and is the second most common incident in hospitals. These incidences can arise from errors and omission in prescribing, preparation, dispensing, administration, monitoring and documentation of the administration in the medical chart. All the errors do not necessarily mean account to harm, but "potential for harm" is a clinically meaningful term used in describing the prescription error (Gates et al., 2019). The potential for harm results from not receiving the drug, receiving contraindicated drugs or overdose, which is better appreciated as breaches in the documentation process. The prescription error commonly occurs during a patient’s admission and is perpetuated during the hospital stay, and sometimes even after discharge (Barton et al., 2012). From the above consideration, Mrs. Smith's case is not uncommon in Australia due to breaches in the documentation of patient information. In this case, it was not only potentially harmful by the administration of a contradicted drug; it resulted to fall and a related head injury and finally her demise. However, the fall may not necessarily be related to penicillin allergy, but due to the exacerbation of the pre-existing chest infection.
Medical records are an integral part of patient care and their purpose is to facilitate the best care and allow other professionals involved in the care of the patient to proceed with appropriate care (Hussain et al., 2016). Medical records include documentation of clinical observations, decision making, and treatment plans are recorded to minimize the likelihood of errors and promote risk management (Baumann, Baker & Elshaug, 2018). Judicious and good documentation also significantly increases the defensibility of claims and complaints in a court proceeding, especially where there are different recollections of the events (MDA, National, 2020; Taube, Scroppo & Zelechoski, 2018). In the case study, if Max goes ahead to file complaints, documentation of her mother's health records will be documents of concern where each entry would identify the professional responsible for each particular care and omission. On the contrary, there was no record of penicillin allergy; it can be argued that neither Mrs. Smith nor her son did provide the complete medical history. Hence, the treatment was standard and appropriate as per the information they provided, where penicillin is not contraindicated.
In the provision of medical care to the patients, their privacy and confidentiality remain as one of the fundamental pillars for practice and appropriate care management (Allaert et al., 2017). Privacy and confidential are seen in all the aspects of healthcare including sharing of health information between the patient and clinician which is vital for quality care and must be protected at all times (Sittig, Belmont & Singh, 2018). Terms defining the distinct boundaries are not absolute and a breach happens. Health information includes all information, and opinions about the health or disability, including their future wishes about healthcare. It also includes personal information collected in connection to the patient's care, such as name, age, gender and addresses. Health information is considered one of the most sensitive types of personal information.
Due to the sensitive nature of the information that is required and collected, Australia set legislature to protect patient information initially through the Privacy Act of 1988 (Royal Australian College of General Practitioners, 2017). It consists of thirteen Privacy Principles which govern standards, rights, and obligations pertaining to privacy and are referred to as the Australian Privacy Principles (APPs). They generally cover (1) collection, use, and disclosure of health information; (2) Organizational governance and accountability; (3) Integrity and correction of personal information; (4) The rights of persons to access their health information. A breach in this Privacy Principles can lead to legal litigation, penalties, and regulatory action (Office of the Australian Information Commissioner, 2019).
The Privacy Act 1988 28 (1)a, it provides that the Australian Informational Commissioner formulate guidelines that will avoid acts or practices that may interfere with individuals' privacy. It is also essential to note that the patient's privacy does not end even after their demise. In case of death of the patient, consent to access medical information of a personis required from the executor or administrator of their estate. In such instances, there should be documentation of the grounds for allowing access and the extent to which the information was disclosed (MDA National, 2020).
In Mrs. Smith's case, information about her health was shared within the care team, including the general practitioner, Nurse Florence, and the Personal Care Attendant (PCA) Janice and Max, Mrs. Smith's son. However, after realizing their mistake, death and Max's threats for legal action against the facilities, Nurse Florence went ahead and posted on her Facebook page giving vague details of Mrs. Smith's case at the facility and involvement of the general practitioner. However, Nurse Florence did not mention Mrs. Smith and specifics of the case but merely expressed her concerns. On the contrary, My Health Records Regulation 2012 lists information about health care provider recorded for a particular patient as to personal and private information. The information posted by the registered nurse was not related tothe patient’s medical condition but it was still bound to the privacy regulations. Since, the general practitioner was involved in the care of Mrs. Smith, the disclosure of his involvement on social media amounts to a breach of Mrs. Smith's medical information even if the medical condition of the patient was not mentioned.
Social media refers to multiple online platforms such as Facebook that can be used to publish, share, and communicate information (Leaver & Highfield, 2018). About 80% of the Australian population accesses the internet for social activities, providing significant opportunities to engage the public (Anderson, Steen & Stavropoulos, 2017). With this opportunity comes the risk of privacy as stipulated the Australian Privacy Principle and organization and individuals run are risks of disclosing protected information (Office of the Victorian Information Commissioner, 2018). As regulated practitioners, nurses must understand and meet their obligation in matters concerning the patient's privacy and confidentiality when using social media. Although a nurse may use social media for private life and may not have links to identity as a nurse, inappropriate behaviour may raise questions about one's capacity to hold registration. Nurses are required to observe laws and code of ethics, whether they are engaging as private users or professionals as the information is considered public (Westrick, 2016).
When using social media, nurses must comply with confidentiality, privacy, and professional obligations as mandated by law and the Board's Code of Conduct. They are also supposed to observe professional boundaries and respectfully engage colleagues, other professionals, patients, employers. They should also not share deceptive, false, or misleading information (Australian Nursing and Midwifery Federation, 2020). According to Green (2017), an increased number of nurses are being summoned to appear before regulatory committees due to unprofessional behaviour on social media platforms. Some of the unprofessional conduct identified includes breach of patient privacy and confidentiality, inappropriate content and postings, and crossing professional boundaries. Social media is here to stay and it is up-to-the nurses to learn and appropriately navigate the complexities and boundaries of their professional and private life. Nurse Florence went ahead to post what she considered was the general practitioner's incompetence that could cost her the job, although there is no mention of names.
Pieces of information about a case may not make sense to the majority of the public and may not breach privacy and confidentiality laws but it could be identified by the people involved and extended family of the patient accounting to breach of privacy and confidentiality (Nursing and Midwifery Board, 2019). If a person thinks that a healthcare professional is violating their privacy and confidentiality by how they are handling their information, they are encouraged to ask directly (individual or organization) or file compliant with the Complaints Commissioner (Victoria State Government, 2015). Max has intentions to sue, and information posted by Nurse Florence is in direct violation of the patient's privacy. Although she posted on a part of the case, Facebook is considered a public domain.
Max can prove it as the violation of his deceased mother’s privacy, as he knows the series of events before his mother died. Max was also present when Nurse Florence informed the general practitioner that they had administered penicillin, which prompted Max to indicate the history of penicillin allergy. A post from Facebook indicating the lack of documentation by the same nurse that that took care of his mother, would suggest she was disclosing information without consent. It might not necessarily be related to the Smith case, and if not, it would raise more concerns about the quality of care in the facility. In addition to this, she also crosses the professional line by posting which is not only inappropriate but is also disrespectful towards other healthcare providers and is a breach of professional conduct.
The tort of negligence is one of the significant legal issues resulting from the circumstances revolving around Mrs. Smith's death. In most cases, negligence arises when there is a breach to duty for the care from one individual to another in a reasonable circumstance. The tort of negligence is recognized in most Common Wealth democracies, as it has its roots from the United Kingdom (Clayton, 2019). Australia and the United States both have adopted the tort of negligence in their respective civil laws since the time. Some of the significant components are that a plaintiff must prove negligence in a case and include the fact that there was a breach or dereliction of duty. The accused should have owed them a duty and the defendant's actions were responsible for the damage incurred, and that the damage was not too remote. The concept of proximity cause is also necessary for proving that the tort one is suing for is responsible for the damages incurred, and not any other possible cause (Descheemaeker, 2019). In the outlined case study, multiple incidents meet the characteristics outlined for the tort of negligence, an indication that the legal issue is involved. The Wrongs Act of 1958 stipulates two types of negligence, criminal, where there is intent to cause harm, which is charged and murder. The second is civil negligence, where the harm is caused by recklessness and is charged under manslaughter.
One of the significant incidents that involve the tort of negligence in the case is Janice's decision not to report vital signs noted of Mrs. Smith by nurse Florence as instructed. Initially, the nurse had instructed the patient's personal care attendant to keep watch on the patient and inform her of any observable change that indicates the patient's health was deteriorating. However, PCA Janice did not report about Mrs. Smith's change in respiration, which she had noted that they were slow and shallow on the chart but assumed that it was probably as a result of the fall. Nurse Florence, as the care team's nursing professional, had been called in and delegated her duty and failed to inquire about the findings of Mrs. Smith, which amounts to negligence on her part. Personal care attendant Janice and Nurse Florence both neglected their duties by failing to report and follow up as and when required. It was the duty of Mrs. Smith's personal care attendant, Janice to watch over the patient and report the changes be it negative or positive to the nurse as instructed.
However, her decision to assume that the drastic changes in the patient breathe resulted from the fall despite not being a healthcare professional is accountable as negligence. The incident fulfils all the four major characteristics of negligence, thus indicating that indeed the legal issue of negligence is involved. For instance, Mrs. Smith was owed a duty of care through a unique relationship by Janice. This result from the fact that she had been serving as her personal care attendant for some time and she had been instructed by the nurse to keep watch on the patient and report any incident as they await the arrival of the general practitioner (Devereux, 2019). The experience also involves the dereliction or breach of that duty. The fact that Janice assumed the patient's healthcare status, thus failing to report any changes as instructed, is a breach of the outlined duty. Moreover, the plaintiff suffered damage as a result of that breach.
The characteristic is fulfilled in the case study by the fact that Mrs. Smith died later as a result of the injuries sustained. This could have not been the case if Janice has not neglected her duty to report any changes, as the patient could have been treated as an emergency case. It is also outlined by the national safety and quality of healthcare standard number eight in which it is the duty of the healthcare professional to make sure that clinical deterioration of the patient is monitored and necessary action is taken which was not done in the present case (Australian Commission on Safety and Quality in Health Care, 2020). Lastly, another characteristic of a tort of negligence fulfilled by the incident is the fact that the damage was not too remote. This involves the concept of proximate cause, which shows the breach led to premature death. As indicated earlier, probably the patient could have been taken to the hospital as an emergency case if at all, PCA Janice and Nurse Florence were consistent with their duties and the patient's life would have been salvaged. There was no indication of intent to cause, but there was a degree of recklessness by both Janice and Florence in carrying out their duties and can be charged with manslaughter.
Another incident that involves tort of negligence in the case study is the general practitioners’ decision to prescribe oral penicillin to the patient without considering whether she is allergic to the drug or not. The physician had gone ahead to order the nurse on duty to administer the medication four times a day to enhance the patient’s recovery. Initially, the general practitioner had the responsibility of ensuring that the drugs prescribed to patients would not deteriorate the situation further instead it would solve the problem. This can only be achieved by checking the patient’s record or consulting individuals responsible for their healthcare decisions if at all they are not in a position to communicate to ensure that they are not allergic to the drugs (Geistfeld, 2020). However, the fact that the physician did not analyze the patient’s record nor consulted her son to determine if the patient was allergic to penicillin accounted for negligence. Moreover, the incident further fulfils the four main characteristics of negligence, thus proving that indeed the tort was committed. For instance, Mrs. Smith was owed a duty of care through a special relationship. Here, the general practitioner had been entrusted with caring for Mrs. Smith while in the facility.
Thus, the physician had a duty of going out of his way and ensuring that the care administered to Mrs. Smith was of high quality and effective on her body. There was a breach of this duty the instance when the general practitioner assumed that Mrs. Smith was not allergic to penicillin and proceeded further to prescribe its administration four times a day (Raphaels, 2015). Although there was no record indicating that the patient was allergic to the drug, the doctor should have asked the patient or asked the patient’s son who was present. The son Max was aware of his mother’s response to penicillin. If these were not possible either it should have been tested for or else it should have been assumed that patient might be allergic and a different class of drug should have been prescribed. This is done because penicillin is one of the most common drugs for which people show allergy to (Pongdee& Li, 2018).
The patient could not have fallen from the bed leading to sustained cerebral bleeding; if at all, the physician had not neglected his duty of considering the patient’s background before prescribing any medicine. This result from the fact that the allergy resulting from the penicillin administered was responsible for making the patient uncomfortable due to breathing problems developed, thus leading her to fall. Lastly, the damage was not too remote, as there was proximate cause to indicate that the breach caused the damage (Writting, 2015). Thus, the general physician's, PCA Janice and Nurse Florence behaviours were directly responsible for the patient's death by recklessness in their duty of care.
Max has a strong case against both the hospital and the Aged Care facility. The hospital and the aged facility's employees committed a tort of negligence, which warranty the son to sue them for the death of the mother. The three committed negligence independently and the cumulative effect of their actions contributed to the patient’s death. Raising negligence as the leading legal issue from the incident in an Australian court of law would increase Max’s chances of winning the case (Devereux, 2019).
In conclusion, although the role of law remains contestable in medical practice, it has played an ever-increasing role in regulating medical practice. Various professional boards and state agencies have, over the years, formulated legislation and standards of practice to address and promote public health safety concerns and ensure medical professionals provide safe and effective treatment. It is the duty and professional responsibility of the healthcare professionals to make sure the safety and quality standards so that there is positive health outcome of a patient. When these standards are not upheld it can lead to untoward outcome and harm the patient and even lead to death. In such cases where ethical standards are breached it can lead to legal implications to the one who has neglected their sense of duty and were involved in the care process of the patient. A series of events consequentially led to the demise of Mrs. Smith in intensive care, and the son threatened legal action against the hospital and Aged Care facility for negligence and reporting the accident to the Coroner. It raised several legal concerns regarding the care that Mrs. Smith received. The first one is regarding the documentation of Mrs. Smith BPMH as indicated by the Australian Commission on Safety and Quality in Health Care Standards.
The attending general physician failed to document Mrs. Smith’s penicillin allergy, resulting in the administration of a contraindicated drug. Other legal concerns during her care consequentially followed this error. Both PCA Janice and Nurse Florence neglected their duties, which amounted to professional negligence, subject to tort and Wrongs Act of 1958. Upon the deteriorating condition of Mrs. Smith, PCA called in Nurse Florence for further assistance. Nurse Florence delegated her duties but did not follow up, while PCA Janice did not report any findings compromising Mrs. Smith’s care. Nurse Florence further expressed her frustration on Facebook about how the case was handled, as she was at risk of losing her job. She termed it as the incompetence of others, and the process potentially breached patient privacy and confidentiality rights and crossed professional boundaries. Following the demise of his mother, Max may sue both the hospital and Aged Care facility and depending on the case study Max has a strong case. It can be argued that the three independently committed professional negligence by failure to follow the safety and quality in healthcare standards.
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