Applying the law of negligence - Australian medico-legal issues


Applying the law of negligence to the Project
In this section we address various issues that have been raised by Project participants,
applying the principles of negligence that have been explained in the previous section.
Will advancing my clinical practice increase my medico-legal risk?
Key points
Registered nurses who provide emergency care in rural hospitals and health services
already assume a degree of medico-legal risk.
The actual medico-legal impact of advancing the clinical practice of registered nurses
who provide emergency care in rural hospitals and health services may not be known
with certainty for some years. It is possible but not inevitable that there will be some
increase in medico-legal risk.
Medico-legal risks can be managed,

 however, and risk management needs to be
practised actively. The tools and support provided through the Project will assist in the
management of medico-legal risk in this situation.
Registered nurses who provide emergency care in Victorian rural hospitals and health
services who work within their approved role and responsibilities will be fully insured for
any damages that are awarded in the event of a successful action in negligence against

 The Nurses Board of Victoria recognises that a nurse's clinical practice may include areas of
practice that 'have not previously been within the realm of nursing or midwifery practice and
have traditionally been the responsibility of other health professionals'.27
The implementation of the PCCM means that registered nurses may assume greater clinical
responsibility for the management of patients with acute or emergency presentations. They
also will have access to tools and other supports to limit their medico-legal risk.
If a patient alleges negligence against a registered nurse who has provided emergency care in
a rural hospital or health service and the case is heard in court, the court will consider
professional opinion about what would be expected of an ordinary skilled registered nurse
practising in that setting. 

For example, a court may well find that an ordinary skilled registered
nurse working in a rural setting would be expected to have basic skills in assessment,
resuscitation and stabilisation of patients.
It should be noted that in almost all circumstances nurses will be protected from any personal
financial burden if a claim against them is successful - the financial burden of nurses' legal
liability ultimately will be borne by the hospital or health service which employs them, under the
principles of vicarious liability and non-delegable duty.

27 Guidelines: Scope of Nursing and Midwifery Practice. Nurses Board of Victoria.
How can I manage my medico-legal risk if I provide telephone advice to patients?
Key points
The provision of telephone advice to patients is a very important service to communities
in rural and remote areas. It is subject to the same principles of negligence as the
provision of face-to-face advice.
Registered nurses should take care to ensure that they communicate well, understand
the patient's symptoms, work within their approved role and responsibilities and in
accordance with their training and experience and document the key aspects of the
discussion and the advice that is provided.
The Project creates a good opportunity for registered nurses, general practitioners,
hospitals and health services to work together to agree policies and protocols for the
provision of telephone advice.
This issue relates to advice given by a health care professional over the telephone to a patient,
in circumstances where he or she does not actually see the patient.
The provision of telephone advice to patients in rural and remote areas is a very important and
valued service. It should be done competently, carefully and within a nurse's approved role and
A nurse providing emergency care in a rural area would be expected to provide such advice in
accordance with the standard of an ordinary skilled registered nurse practising in that setting.
While it may be tempting to advise all patients to come to the hospital or health service as a risk
management strategy (to 'cover' the nurse and protect him or her from medico-legal risk) this
may not be in a patient's overall best interests.
The principles of negligence apply in this situation in the same way they apply to the provision
of face-to-face advice. The courts have recognised that negligent and/or misleading advice and
opinion can ground liability in negligence and that where the information giver ought to have
known that the recipient of the information would rely on that information, 

there is a duty to take
reasonable care that the information is correct.28
A nurse providing emergency care in a rural setting should assume that a patient who seeks
telephone advice is likely to rely on that advice. The fact that there is no formal triage process
will not alter the duty of care that is owed to the patient and/or the other health care
A registered nurse providing emergency care in a rural setting can limit their medico-legal risk in
this situation by:
x ensuring that they are fully informed about the patient's condition;
x ensuring that they do not provide advice in areas in which they are not trained and/or

28 L Shaddock & Associates Pty Ltd v Parramatta City Council [1981] 50 CLR 225
x following standard practice;
x documenting the key aspects of the conversation including the patient's symptoms,
the patient's response to specific questions and the advice given;
x always advising the patient to seek further advice or present for review if their
condition changes; and
x over time, working with their colleagues and the hospital or health service to review
best practice and document policies and procedures for the provision of telephone
What do I do if I advise a patient to stay for observation, but they refuse?
Key points
In most circumstances, a patient cannot be forced to stay against their will, but they
need to be advised very clearly of the risks that they are assuming by refusing to stay.
Make all reasonable efforts to make it possible for patients to stay, and document the
key points of the discussion with them about why it is important for them to stay.
Sometimes it is good practice to advise a patient to stay for observation or for review by another
health care professional.

 While generally a health care professional cannot force a patient to stay against his or her will
(to do so would expose them to liability for false imprisonment), it has been held that a nurse
was negligent for failing to advise a patient to remain at a hospital.29 There are exceptions to
the rule that a patient cannot be forced to stay to receive treatment. For instance, a mentally ill
patient may be admitted as an involuntary patient under the Mental Health Act 1986.

 A medical
practitioner should be consulted if this situation appears to apply. In addition, if a patient is
considered to be incompetent, then their consent will be considered to not be withheld validly -
the issue of consent and competence is discussed later in this manual.
If a competent patient refuses to stay, the risks of leaving against advice should be explained
clearly and the nature of the advice and the patient's refusal should be documented in the
medical record. The patient should be asked to sign the medical record confirming their refusal,
but this cannot be enforced.

29 Wang v Sydney Area Health Service [2000] NSWSC 515. The hospital was vicariously liable for
the nurse's negligence. Even a medical receptionist has been held to owe a duty of care to a patient
(e.g. in prioritising an appointment for a patient): Alexander v Heise [2001] NSWCA 422
Do I have a duty of care to a violent or aggressive patient?
Key points
Victoria's Occupational Health and Safety Act 2004 requires employers to take
reasonably practicable steps to maintain a safe environment for patients and staff in
which patients can be offered treatment in accordance with the duty of care that is owed
to them. If violence or aggression cannot be controlled so as to provide a safe working
environment, however, the health service's duty to staff takes precedence over its duty
of care for patients. The statutory duty of care is high and a breach leads to a potential
penalty or conviction.
Health care professionals and health services must work together to develop strategies
to prevent and manage the risk of occupational violence. The focus needs to be on
proactively reducing risks at the source.
Violence against health care professionals is increasing in frequency and is a particular risk in
the emergency setting. The Occupational Health and Safety Act 2004 requires :

 x an employer, so far as is reasonably practicable, to provide and maintain for its
employees a working environment that is safe and without risks to health;
x that persons other than employees of the employer are not exposed to risks to their
health or safety arising from the conduct of the undertaking of the employer;
x an employee, while at work, to:
x take reasonable care for his or her own health and safety; and
x take reasonable care for the health and safety of persons who may be
affected by the employee's acts or omissions at a workplace; and
x co-operate with his or her employer with respect to any action taken by the
employer to comply with a requirement imposed by or under the Act or the
This means that health services have a non-delegable duty to take reasonable steps to provide
a safe place and a safe process of work for everyone on site, including visitors, patients, subcontractors and a sub-contractor's employees. This duty is not diminished by the duty of care
that is owed to patients. In the New South Wales context, the Industrial Relations Commission
has made the following statement:
"There can be no doubt that in a situation where the choices facing the
defendant are physical intervention in order to ensure that a patient is
restrained from hurting others and a risk to the health, welfare or safety of
employees, if such steps are not taken, the absolute obligations imposed upon
the defendant by s.15 of the Act, require that safety of employees be preferred.
No matter how dedicated to patient welfare a nurse or other employee might
be, it is inconsistent with the requirements of the Act, that the defendant permit
them to be subject to physical assault, or indeed repeated physical assault, by
patients who are not restrained from harming others. Employment on such a
basis is not permitted by the Act."30
Strategies to minimise occupational violence in the health care setting include improving
environmental design; reducing risk through administrative controls (e.g. adoption of 'zero
tolerance' policies); and training staff to identify and manage situations in which violence is
likely to escalate. A safe place of work is paramount.

 Zero tolerance policies generally provide
for the restraint of violent patients in uncontrolled circumstances and the refusal of nonemergency treatment where violence is unable to be managed effectively.
Health services must develop comprehensive policies and programs that balance the need to
protect staff against the duty to provide health care to patients. They also need to be proactive
and oversee implementation of those policies and programs so that all reasonably practicable
steps are taken to reduce risks at the workplace.

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