Medical legal issues in autralia new south wales


Other potential consequences of adverse events
Apart from an action in negligence, there are several other avenues through which the
management of a patient by a nurse may be scrutinised. The main ones are:
x complaints to the hospital or health service;
x complaints to the Health Services Commissioner;
x a Coroner's investigation; and
x an investigation by a health care professional regulatory body.
The following sections of this manual explore issues relevant to claims of negligence. Later in
the manual, we present information about complaints processes, Coronial investigations and
investigations by professional registration bodies such as the Nurses Board of Victoria. We
also present information about risk management and statutory obligations of health care
The nurse as a professional
Registered nurses are professionals in their own right and always have carried individual
responsibility for the consequences of the care they provide.
The Code of Ethics for Nurses in Australia, produced by the Australian Nursing and Midwifery
Council, states as follows:
"As morally autonomous professionals, nurses are accountable for their clinical
decision making and legal obligations for the provision of safe and competent
nursing care."
It is part of the nurse's responsibility to recognise when a certain activity may be beyond his or
her authorised practice or competency, and this in itself constitutes a professional judgment for
which he or she is accountable, as is the decision as to who is the most appropriate person to
call for assistance. This concept has been endorsed by the Nurses' Board of Victoria6

The nurse's independent professional responsibility has been confirmed in various court cases.
For example, in John James Memorial Hospital Ltd v Keys a doctor admitted a patient to
hospital for the management of her sciatic pain. The possible side effects of the medication
prescribed included confusion and drowsiness. The patient experienced two falls in the hospital
when she attempted to mobilize without supervision.

 At trial the doctor was held liable for not
informing the nurse, who had left the patient unattended, of the possible side effects of the
medication. However, the Court of Appeal considered that the failure of the doctor to
communicate this risk to the nurse was irrelevant as the patient's disorientation 'was a condition
foreseeable by any trained person who had knowledge of [the plaintiff's] medication regime'.
Hence the nurse could not escape liability simply because she was not instructed adequately by

Guidelines: Scope of Nursing & Midwifery Practice. Nurses Board of Victoria.
the doctor, and the hospital was found to be vicariously liable (for an explanation of vicarious
liability, see the discussion commencing on page 13 of this manual)

A nurse is accountable for his or her practice, therefore, to the patient and to the hospital or
health service. Just because a nurse calls a doctor or seeks the assistance of another person
does not mean this accountability is diluted; to the contrary, a nurse's accountability
encompasses any decision to call on a doctor, or any other member of the clinical team, for
advice and/or assistance.
Similarly, the NSW Industrial Relations Court considered that a sole nurse practitioner, although
employed by a health service and subject to its protocols and procedures, had a 'direct and
personal responsibility' to follow the procedures expected of her, and that apart from not
following the protocols, the nurse also 'failed to follow her own methodology'8
. It was
considered that the health service was entitled to 'rely on the expertise and competency' of the
nurse and to expect that her duties would be attended to. As to the respective responsibilities
of the nurse and the hospital in relation to the protocol, the Court said9
'The applicant [nurse] and respondent [health service] were provided with
copies of these protocols and each party understood that the Department's
protocols were to be followed. It cannot be asserted that because the
respondent failed to take time to draw the Department's protocols and clerical
standards to the attention of the applicant that there was a failure on the part of
the respondent, bearing in mind the level at which the applicant was employed
to perform her duties.'
The Court rejected the nurse's argument that she could be excused for her failure to meet the
appropriate standards because she was never counselled or warned about such standards by
the health service.

 The Court noted that the nurse had been entrusted with the safety of her
patients and that this trust had been betrayed; the standard of professional care provided by her
was not the best that she could have provided. The Court went on to say10:
'The applicant [nurse] accepted that not only was she responsible for providing
a clinical service which was absolutely fundamental to the health and well being
of women who used that service, but she was responsible for providing such
clinical service at an advanced level of nursing practice, [involving] an
advanced level of knowledge, of initiative of responsibility.. and therefore of
course accountability.'
In a recent investigation by the New Zealand Health and Disability Commissioner11, it was
found that while the nurses in question undertook a series of 'technical tasks' (e.g. taking

John James Memorial Hospital Ltd v Keys (1999) FCA 678
8 Ison v Northern Rivers Area Health Service 03/03/1997 IRCt (NSW) 44/97
9 Ison v Northern Rivers Area Health Service 03/03/1997 IRCt (NSW) 44/97
10 Ison v Northern Rivers Area Health Service 03/03/1997 IRCt (NSW) 44/97
11 A Report by the Health and Disability Commissioner (Case 05HDC07285). New Zealand.
temperature), they did not apply any critical thinking12, make any assessments of the patient's
condition, or exercise any clinical decision-making, and they did not apply basic nursing skills in
assessing the health of the patient. In this case, an elderly lady at a rest home sustained a skin
tear which ultimately resulted in septicaemia and death; it was found that the nurses had failed
in their assessment of the patient by not considering the possibility of infection earlier. It was
considered that the nurses ought to have been aware that a normal temperature did not
preclude infections in elderly patients, and that this was 'fundamental knowledge that would be
reasonably expected of a registered nurse working with older adults', so that the nurses' failure
to make any further assessment of the patient fell below professional standards.
It was considered that it is the responsibility of registered nurses working in an aged care facility
to have the appropriate knowledge, education and skill relating to the care of older adults. 

was said that registered nurses 'should apply a degree of critical thinking to any given situation'.
Good nursing practice was considered not to have been followed in that:
x the doctor was not called when the signs and symptoms warranted it;
x the notes from the previous shift were not read;
x there was poor documentation and documentation added after the patient was
discharged; and
x the patient was not assessed in a way which would be expected of a registered
These cases demonstrate that registered nurses are expected to exercise their own judgment
and their conduct is expected to meet the reasonable standard of a registered nurse.
Registered nurses remain independently accountable for their actions and decisions.

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