Legal and professional issues for the perioperative practitioner

KEYWORDS Standards / Duty of care / Professionalism / Legal issues Provenance and Peer review: Commissioned; Peer reviewed; Accepted for publication November 2011. Legal and professional issues for the perioperative practitioner by Susan Pirie Correspondence address: Susan Pirie, Practice Educator (Theatres), Surrey and Sussex Healthcare NHS Trust, East Surrey Hospital, Canada Avenue, Redhill, RH1 5RH. Email: spirie2000@yahoo.co.uk The aim of this article is to provide guidance to perioperative practitioners on some of the legal and professional issues associated with their practice. It is anticipated that students and practitioners new to the perioperative environment will find this article can assist them in relating the issues discussed to their own practice. More experienced practitioners can refresh their knowledge of these issues. The importance of professional codes and standards of practice will be discussed and topics pertaining to professional accountability, including delegation, will be highlighted. Some issues relating to employment law will also be discussed. It is generally accepted that there is a year on year rise in clinical negligence claims and it is reported that the NHS Litigation Authority received 8,655 claims in 2010/11, which is an increase from 6,652 in 2009/10. These claims resulted in settlements totalling 863million in 2010/11 (NHSLA 2011). This article will provide an overview of the legal process associated with clinical negligence claims, and in particular, an explanation of the duty of care. Duty of care The duty of care is an almost universal expression with which many practitioners will be familiar. There are at least three specific areas in which a duty of care is owed. These are related to employment, legal and professional issues, all of which are interlinked for practitioners in perioperative practice. The duty of care in relation to healthcare is defined by Brazier: The law imposes a duty of care owed by doctor to patients. That duty however, generally involves me not doing me any harm (Brazier 2003). However, others suggest that the duty of care is owed by all healthcare professionals. Hind 2005 states that a duty of care exists between a practitioner and those who could be affected by their actions or omissions. It follows then, that a duty of care exists between the practitioner and all patients that they are employed to care for. The general legal duty of care was defined in a legal case, Donoghue v Stevenson [1932]. This case concerned the contamination of a bottle of ginger beer, in which the decomposed remains of a snail were found, after the contents had been partially drunk. The case was brought before the courts, as the claimant believed that the manufacturer of the drink owed him a duty of care. This view was upheld and the duty of care was established as the neighbour principle (Dimond 2008, Cox 2010). A key statement by Lord Atkins in this case was You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions that are called in question (Donoghue v Stevenson 1932). It has also been established that an individual owes a duty of care to themselves, and the law would expect the individual to have taken reasonable care of him/herself. In a legal situation, an assessment of the individual s ability to take care of themselves and to understand and follow basic instructions would be considered in relation to any claim for harm (Dimond 2002). As an example, a patient who is instructed to take prescribed medication, such as insulin, and who then fails to do so, is likely to be unsuccessful for any claim for damages such as short term memory loss as a result of a hyperglycaemic episode resulting from their failure to take insulin as instructed. Another element of the duty of care is that owed by the employer to the patient and to staff it employs. The employer may be held liable under a duty of care for the provision of safe systems of working. A direct duty of care can be breached by an employer, if they have failed to staff an area adequately, or have failed to ensure that staff are Reflect Read your job description and/or person specification and consider whether your practice reflects the activities and duties outlined in these documents. Core 1: Communication Core 2: Personal and People development February 2012 / Volume 22 / Issue 2 / ISSN 1467-1026 57

Legal and professional issues for the perioperative practitioner Continued effectively trained and are competent to provide the care that has been called into question (Cox 2010). Thus it can be seen that almost anyone can be held to have a duty of care in a healthcare setting. Practitioners should also be aware that the job description and/or person specification are also important documents as they form part of the contract of employment. It is important to be aware that the contractual process can actually start with the job advertisement. While neither the applicant or the employer is legally bound by the recruitment process, it is viewed as an invitation to treat and will remain as an informal process until such time as a formal offer of employment is given to the candidate, who in turn accepts this offer (Dimond 2008). Another important element of the contract of employment is the use of policies and protocols. Policies have been defined as a plan of action adopted by a person, group or government (Collins 2003) and protocols are defined as a plan which specifies procedures to be followed (Smith & Williams 2004). All of these documents inform the parameters of the job role the employee is expected to undertake. It is particularly important to be aware of the parameters of extended roles such as the advanced scrub practitioner (ASP) and advanced roles for support workers such as those undertaking the scrub role. The scope of practice in relation to extended roles is discussed later in the text. From a professional perspective, both the Health Professions Council (HPC) and the Nursing and Midwifery Council (NMC), the regulatory bodies for Operating Department Practitioners and Registered Nurses respectively, also impose a duty on their registrants, as outlined in Box 1. It is suggested therefore that the duty of care is established in healthcare between the practitioner and the patient. However, practitioners should be aware that a duty of care will be owed to the patient from all of the healthcare practitioners involved in their care, and that the direct care provided by a practitioner will be viewed in the courts as being a direct or primary duty of care, owed You are personally responsible for making sure that you promote and protect the best interests of your service users (HPC 2008 p8) The people in your care must be able to trust you with their health and wellbeing. To justify that trust, you must: *make the care of people your first concern, treating them as individuals and respecting their dignity.. *provide a high standard of practice and care at all times (NMC 2008 p1) Box 1 Duties imposed by professional regulating bodies by the practitioner concerned to the patient (Cox 2010). Standard of care Once it has been established that a duty of care is owed, then it is important to establish what would be an acceptable standard of care. The legal case that was pivotal in establishing how the standard of care is determined was the Bolam v Friern Barnet HMC 1957. The facts of this case can be found in Box 2. The key elements relating to a standard of care that this case established was to reduce the emphasis on the actual clinical situation in which an incident has occurred but to focus on considering how the standard of care would be viewed by other professionals in a similar situation. Furthermore, this case also established that the standard of care would be that of a reasonably skilled and experienced professional Practitioners are often concerned that, as they undertake extended roles such as the ASP or the physician s assistant in anaesthesia, they are unsure as to which standard of care would be considered. At the time of writing, no such case has been though the courts. However, there is anecdotal legal opinion that, as these roles were traditionally undertaken by medical practitioners, then the adjudged standard of care would be that of a junior doctor. This In this case, Mr Bolam sustained injury whilst undergoing electroconvulsive therapy, and sued for negligence, by claiming that he had not been fully informed of all the risks associated with this treatment. He also claimed that, as the doctor concerned had not administered muscle relaxant drugs and that staff had failed to ensure that he was restrained appropriately, these actions had a direct influence on the extent and type of injuries that he sustained and for which he was now seeking compensation. The courts sought the opinions of other doctors as the hospital did not dispute that Mr Bolam had suffered harm, but did not consider that the harm had resulted only as a consequence of failing to use appropriate restraints and muscle relaxant drugs. Both legal teams called experts to support their views, including medical practitioners who did not consider that the use of muscle relaxants should have been standard practice. The outcome of the case was that the judge ruled in favour of the hospital on the basis that neither physical nor chemical restraints were solely to blame and that a reasonable doctor would not necessarily have informed Mr Bolam of all of the risk he had subsequently identified (Bolam v Friern Barnet HMC 1957, Hind 2005). Box 2 Case of Bolam v Friern Barnet HMC 1957 view is based on the evidence that on many occasions, these activities would have been undertaken by such a doctor, and therefore this would be viewed as the established standard against which to measure (AfPP 2011). The issue of addressing the standard of care in relation to the experience of practitioners and in particular the standard relating to learners was established in Wilsher v Essex Area Health Authority 1986. This issue is discussed in Box 3. 58 February 2012 / Volume 22 / Issue 2 / ISSN 1467-1026

When something goes wrong in healthcare practice, and a patient suffers harm as a result, then it is likely that the patient will seek financial compensation The duty of care and the standard of care are key elements to be considered when clinical negligence claims are actioned. All clinical negligence claims are brought to the courts using the legal tort of negligence. Tort of negligence When something goes wrong in healthcare practice, and a patient suffers harm as a result, then it is likely that the patient will seek financial compensation for the harm that has occurred. The patient or the patient s family, whichever is more appropriate, will need to follow the local procedures for complaints and exhaust these processes prior to applying to the courts in most instances. The legal process that will be used is the tort of negligence, and most of these cases will be heard in the civil courts. Gross negligence may be heard in the criminal courts, and will normally only be heard in this court if the patient has died as a result (Brazier 2003). There are three elements to the tort of negligence, all of which must be met, and these will now be discussed. Review Access a copy of your professional regulators Code or Standards of Practice and consider how the professional duty of care can be identified in your daily practice. Core 2: Personal and People Development HWB 5: Provision of care to meet health and wellbeing needs Wilsher was a premature baby cared for in a special care baby unit who had a range of clinical problems, one of which was oxygen deficiency. As part of his care a junior doctor was asked to place a catheter in an artery in order to accurately measure oxygen levels in the baby. This doctor inserted the catheter into a vein. The doctor then asked his senior colleague on duty to check his work, and this practitioner failed to recognise that the catheter had been inserted into a vein and not the artery as intended. A few hours later the same senior doctor was required to reinsert the catheter and again placed it in vein and not an artery. The baby s oxygen levels remained low and consequently high concentrations of oxygen were administered. Once the error was realised and the catheter placed in the artery, it was found that the baby had suffered retinal damage for which the parents brought a legal action for negligence. The courts did not hold the junior doctor negligent for inserting the catheter into the vein as he had sought advice from a senior and more experienced colleague. However, the senior colleague was found to be negligent in this case. Box 3 Case of Wilsher v Essex Area Health Authority Duty of care It has already been established that individual practitioners and employers will owe a patient a duty of care. It is also pertinent to note that a hospital or general practitioner practice will also owe the patient a duty of care: by admitting the patient for treatment or by accepting them onto their practice list, a duty of care will have been established (Brazier 2003). Therefore, it is accepted by the courts that a duty of care has been established. Breach of the duty of care The next element to be satisfied is that of the breach of the duty of care, and one of the key issues here is to establish the standard of care. Expert opinion will be sought from practitioners from the same field of practice as part of the process of establishing an acceptable and reasonable standard of care. It is the claimant s responsibility to prove that there has been a breach of the duty of care by demonstrating that the standard of care has fallen below the required standard of care (Brazier 2003). The law requires that healthcare practitioners are aware of what is reasonably foreseeable (Cox 2010). For example, it is known that if alcoholic skin preparations are allowed to pool under the drapes, under the tourniquet or in the umbilicus, they should be allowed to dry to reduce vapour as there is a risk of ignition from sparks generated from the use of diathermy (MDA 2000). It is also the case that practitioners should be aware of the standard of care that they will be judged against, which will be the standard of care practised by a responsible, relevant and reasonable body of appropriate practitioners (Cox 2010). Causation If it is established that there has been a breach in the duty of care, then the courts will have to determine the degree of foreseeable risk in connection with the likelihood of harm that could occur. This is in order to establish a causal connection between the breach of the duty of care. Review Identify a situation that has caused you concern in relation to the standard of care and consider whether the legal and professional duties of care have been met in these situations. Core 2: Personal and People Development February 2012 / Volume 22 / Issue 2 / ISSN 1467-1026 59

Legal and professional issues for the perioperative practitioner Continued In effect, this can be taken to mean that the harm must be a direct result of the breach of the duty of care (Bond & Paniagua 2009). A legal example of the difficulty of establishing a causal connection can be seen in the case of Barnett v Chelsea and Kensington Hospital Committee 1968. In this case, a man was taken to casualty for persistent vomiting after he had drunk a cup of tea. The doctor on duty refused to see the patient immediately, and the patient died shortly afterwards. The cause of death was found to be the result of arsenic poisoning. The patient s widow was not successful in her claim for damages, despite it being proven that the doctor concerned was in breach of his duty of care. This was because the body of reasonable opinion held that the patient s death was inevitable following the ingestion of arsenic, and that medical care could not have prevented death. Having discussed some of the legal issues pertinent to perioperative practitioners it is now appropriate to consider some of the issues related to professional accountability. Reflect Reflect on the incident identified above and consider whether any aspect of practice can be improved to prevent a similar situation in the future. Consider any improvements in relation to the scope of practice and share your views with colleagues if appropriate. Core 1: Communication Core 4: Service improvement HWB 5: Provision of care to meet health and wellbeing needs Professional accountability Operating Department Practitioners and Registered Nurses, are required to work within the standards set by their relevant regulatory body, as part of maintaining their professional registration: i.e. Standards of conduct, performance and ethics (HPC 2008) and The Code: Standards of conduct, performance and ethics for nurses and midwives (NMC 2008). In doing so there is a requirement that registrants will have accountability to their regulator to uphold the reputation of their profession at all times. Being accountable is defined as being responsible to someone or for some action (Collins 2003). Professional accountability is an accepted part of practice (Hughes 2002). These issues are now discussed further. NMC code The Nursing and Midwifery Council code places a wide range of responsibilities on registrants, and holds nurses accountable in circumstances where these responsibilities are not met to the desired standard. One of the key elements that are required is As a professional you are personally accountable for actions and omissions in your practice and must always be able to justify your decisions (NMC 2008). There are a number of issues to consider within the NMC code including record keeping, risk management and maintaining professional boundaries. Some of the areas of accountability within the code that are particularly pertinent to healthcare practitioners are as follows: n You must deliver care based on the best available evidence or best practice. n You must recognise and work within the limits of your competence. n You must keep your knowledge and skills up to date throughout your working life (NMC 2008 p4). and: n You must keep clear and accurate records of the discussions you have, the assessments you make, the treatment and medicines you give and how effective these have been. n You must complete records as soon possible after an event has occurred. n You must not tamper with original records in any way (NMC 2004 p4). and: n You must act without delay if you believe that you, a colleague or anyone else may be putting someone at risk. n You must inform someone in authority if you experience problems that prevent you working within this Code or other nationally agreed standards. n You must report your concerns in writing if problems in the environment of care are putting people at risk (NMC 2008 p5). Perhaps the most pertinent of all is the requirement to recognise and work within the limits of your competence. It is up to the individual practitioner to determine what these limits are and to be able to justify their decision in relation to these limits. HPC standards The Health Professions Council standards can be interpreted as being less specific than the NMC code, but it should be remembered that the HPC currently regulates 13 distinct and varied professions and that the standards are applicable to all. ODPs are also required to be able to justify their decisions relating to care as follows: You are responsible for your professional conduct, any care or advice you provide, and any failure to act.. You must be able to justify your decisions if asked to do so (HPC 2008 p8). ODPs are also required to keep their professional knowledge, skills and performance are of a good quality, up to date and relevant to your scope of practice. In addition, there is a similar requirement to recognise and work within the limits of competence as follows: n You must act within the limits of your professional knowledge, skills and experience and, if necessary, refer the matter to another practitioner (HPC 2008 p3). Moreover, this element of the Standards of conduct, performance and ethics requires the ODP to work exclusively in their scope of 60 February 2012 / Volume 22 / Issue 2 / ISSN 1467-1026

There has been considerable debate around the issue of regulation for healthcare support workers for some time (RCN 2007, NMC 2011) A practitioner must: n Uphold the interests of patients and clients at all times. n Keep their knowledge, skills and competence up to date. n Recognise the limits in their own knowledge and skill and take appropriate action to address any deficiencies. n Ensure that existing standards of care are not compromised by new developments and responsibilities. n n Acknowledge their own accountability for all actions and omissions. Avoid inappropriate delegation (UKCC 2000). Box 4 Principles to identify the scope of practice of a practitioner practice for which they have received appropriate education, training and experience (HPC 2008). It is clear, therefore, that identifying the scope of practice is crucial in maintaining professional registration. Scope of practice The need to be clear about the scope of practice in perioperative practice and in particular, in relation to extended roles or advanced practice such as the advanced scrub practitioner (ASP) cannot be underestimated. The United Kingdom Central Council for Nursing Midwifery and Health Visiting (UKCC) defined six key principles to identify the scope of practice when it had moved beyond the existing boundaries of nursing or midwifery practice. These principles are outlined in Box 4. It can be seen that these six founding principles of the scope of practice have been incorporated into the NMC code and have also been included in the HPC code. You must effectively supervise tasks you have asked other people to carry out People who consult you or receive treatment or services from you are entitled to assume that a person with appropriate knowledge and skills will carry out their treatment or provide services. Whenever you give tasks to another person to carry out on your behalf, you must make sure that they have the knowledge, skills and experience to carry out the tasks safely and effectively. You must not ask them to do work that is outside their scope of practice. You must always continue to give appropriate supervision to whoever you ask to carry out a task. You will still be responsible for the appropriateness of the decision to delegate. If someone tells you that they are unwilling to carry out a task because they do not think they are capable of doing so safely and effectively, you must not force them to carry out the task anyway. If their refusal raises a disciplinary or training issue, you must deal with that separately, but you should not put the safety of a service user in danger (HPC 2008 p12). Delegate effectively n You must establish that anyone you delegate to is able to carry out your instructions. n You must confirm that the outcome of any delegated task meets the required standards. n You must make sure that everyone you are responsible for is supervised and supported (NMC 2008 p3). Box 5 Professional accountability of delegation Delegation Perioperative practitioners are often concerned about their accountability and responsibility when delegating aspects of care. The legal accountability and responsibility has been discussed in relation to the Wilsher case outlined in Box 3. The professional accountability is clearly defined by both the HPC and the NMC and is outlined in Box 5. There is often confusion as to whether non registered staff are accountable for their actions. Non registered staff have the same responsibilities associated with the legal duty of care and the duty of care to their employer. They do not have a professional duty of care at present. However, it is imperative to remember that all staff have accountability in relation to the duty of care. What is important for the registered perioperative practitioner is that they retain professional accountability for the appropriate delegation of a task or activity of care. In reality this means that the practitioner will be making a judgement as to whether a colleague can effectively complete a task or activity to the required standards in a safe manner. The practitioner should be clear in their own mind that this is indeed the case as, if their decision is challenged, they will need to justify their decision. There has been considerable debate around the issue of regulation for healthcare support workers for some time (RCN 2007, NMC 2011) and there has been a pilot of employer-led regulation in Scotland which was undertaken on behalf of all four countries of the United Kingdom (SEHD 2006). It is suggested that practitioners, patients and the public would wish to see regulation for this group of the healthcare workforce introduced sooner rather than later, although it is acknowledged that voluntary codes of practice for support workers are already introduced in Scotland (NHS Scotland 2009a,b). In conclusion, this article has sought to highlight some of the legal and professional duties of practitioners in perioperative February 2012 / Volume 22 / Issue 2 / ISSN 1467-1026 61

Legal and professional issues for the perioperative practitioner Continued environments. There are many more areas which have not been addressed here such as consent, record keeping and documentation which will also have a legal and/or professional relevance, but it is hoped that the reader will now have a greater understanding of issues pertaining to the duty of care and their professional accountability. References Association for Perioperative Practice 2011 Standards and recommendations for safe perioperative Practice Harrogate, AfPP Barnett v Chelsea and Kensington Hospital Committee [1968] All ER 1068 Bolam v Friern HMC [1957] 2 All ER 118 Bond P, Paniagua 2009 Understanding the law and accountability Practice Nursing 20 (8) 406-8 Brazier M 2003 Medicine, patients and the law London, Penguin Books Collins English Dictionary 2003 Glasgow, Harper Collins Cox C 2010 Legal responsibility and accountability Nursing Management 17 (3) 18-20 Department of Health 2011 Enabling excellence autonomy and accountability for healthcare workers, social workers and social care workers London, DH Available from: www.dh.gov.uk/prod_consum_dh/groups/dh_digitalas sets/documents/digitalasset/dh_124374.pdf [Accessed December 2011] Dimond B 2002 The duty of care for oneself British Journal of Midwifery 10 (12) 767-70 Dimond B 2008 Legal Aspects of Nursing 5th Ed Harlow, Pearson Education Ltd Donoghue v Stevenson [1932] AC 562 Health Professions Council 2008 Standards of conduct, performance and ethics London, HPC Hind M 2005 Accountability and professional practice In: Woodhead K, Wicker P eds A textbook of perioperative care Edinburgh, Elsevier Churchill Livingstone Hughes S 2002 Law and professional practice: accountability and implications British Journal of Perioperative Practice 12 (3) 94-102 Medical Devices Agency 2000 Use of spirit based solutions during surgical procedures requiring the use of electrosurgical equipment SN 2000 (17) London, MDA NHS Litigation Authority 2011 Key facts about our work Available from www.nhsla.com/home.htm [Accessed January 2012] NHS Scotland 2009a Code of conduct for healthcare support workers Edinburgh, Scottish Government NHS Scotland 2009b Code of practice for employers of healthcare support workers in Scotland Edinburgh, Scottish Government Nursing and Midwifery Council 2008 The Code: Standards of conduct, performance and ethics for nurses and midwives London, NMC Nursing and Midwifery Council 2011 Academic calls for regulation of support workers Available from: www.nmc-uk.org/press-and-media/latestnews/academic-calls-for-regulation-of-supportworkers/ [Accessed December 2011] Royal College of Nursing 2007 The regulation of support workers London, RCN Available from: www.rcn.org.uk/ data/assets/pdf_file/0018/112275 /Regulation_of_HCSW.pdf [Accessed December 2011] Scottish Executive Health Department 2006 Regulation of Healthcare Support Workers - a national pilot Available from: www.scotland.gov.uk/resource/doc/924/0063850.pd f [Accessed December 2011] Smith B, Williams T 2004 Operating department practice A-Z London, Greenwich Medical Media UK Central Council for Nursing, Midwifery and Health Visiting 2000 Perceptions of the scope of professional practice London, UKCC Available from: www.nmc-uk.org/documents/archived%20 Publications/UKCC%20Archived%20Publications /Perceptions%20of%20the%20Scope%20of%20Prof essional%20practice%20january%202000.pdf [Accessed December 2011] UK Central Council for Nursing, Midwifery and Health Visiting 1992 The Scope of Professional Practice London, UKCC Available from: www.nmcuk.org/documents/archived%20publications/ukcc% 20Archived%20Publications/Scope%20of%20Professi onal%20practice%20june%201992.pdf [Accessed December 2011] Wilsher v Essex Area Health Authority [1986] 3 All ER 801 CA: [1988] 1 All ER 871 HL About the author Susan Pirie RGN, MA Health Care Ethics and Law Practice Educator Theatres, Surrey and Sussex Healthcare NHS Trust No competing interests declared Members can search all issues of the BJPN/JPP published since 1998 and download articles free of charge at www.afpp.org.uk. Access is also available to non-members who pay a small fee for each article download. 62 February 2012 / Volume 22 / Issue 2 / ISSN 1467-1026

Disclaimer The views expressed in articles published by the Association for Perioperative Practice are those of the writers and do not necessarily reflect the policy, opinions or beliefs of AfPP. Manuscripts submitted to the editor for consideration must be the original work of the author(s). 2012 The Association for Perioperative Practice All legal and moral rights reserved. The Association for Perioperative Practice Daisy Ayris House 42 Freemans Way Harrogate HG3 1DH United Kingdom Email: hq@afpp.org.uk Telephone: 01423 881300 Fax: 01423 880997 www.afpp.org.uk