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Contents Part I General principles affecting all nurses 1 Introduction: professionalism, the legal system and human rights 3 Professionalism 4 Criminal liability 5 Professional liability 7 Civil liability 7 Accountability to employer 8 Professionalism and accountability 9 Sources of law 9 Differences between civil and criminal law 10 Civil actions 11 Judicial review 11 Legal personnel and legal complaints 12 Legal language 13 Human Rights Act 1998 13 Freedom of Information Act 2000 18 Devolved law-making powers 18 2 Actions in the criminal courts and defences to criminal charges 22 Initial stages of arrest and prosecution 23 Magistrates' courts 25 Plea and Case Management Hearing 27 Crown Court proceedings 28 Elements of a crime 31 Case of Beverley Allitt 32 Case of Sister Salisbury14 32 Case of Nurse Patel15 32 Offence of ill-treatment or wilful neglect 32 Case of Nurse Amaro17 33 Negligence as a crime 33 Administration of drug by epidural instead of intravenous injection 35 Defences 35 Criminal injuries compensation 39 3 Liability in a civil court case for negligence 43 Duty of care 44 Standard of care 47 Causation 53 Liable for what? 57 Harm 57 4 Specific problem areas in civil liability: personal liability of the nurse, vicarious liability of the employer and managerial issues 64 Negligence in communication 65 Inexperience 65 Team liability and apportionment of responsibility 67 Taking instructions: refusal to obey 69 Nurse as manager 71 Pressure on the manager 71 Vicarious liability of employer 73 In the course of employment 74 Liability for negligence of volunteers 78 Duty of care and liability for independent contractors 78 Direct liability of employer 79 Indemnity from the employee at fault 80 Pressure from inadequate resources 82 Public Interest Disclosure Act 1998 and whistleblowing 85 5 Statutory functions and management of the NHS 93 National Health Service 94 White Paper Equity and Excellence: Liberating the NHS 94 Enforcement of statutory duties 98 NHS England (the National Health Service Commissioning Board) 102 Clinical commissioning groups 103 The mandate 106 NHS foundation trusts 106 NHS Improvement (formerly Monitor) 107 Clinical governance 110 Duty of quality 111 The Care Quality Commission 112 National Institute for Health and Care Excellence (NICE) 116 NHS 111 and walk-in clinics 118 NHS inquiries 119 Mid Staffordshire NHS Foundation Trust Inquiry 120 The NHS Constitution 124 NHS and the private sector 125 6 Progress of a civil claim: defences and compensation 130 Civil proceedings 130 Compensation in civil proceedings for negligence 136 Defences to a civil action 139 Clinical Negligence Scheme for Trusts (CNST) and the NHS Litigation Authority (NHSLA) 148 NHS Redress Act 2006 149 Reforms to civil litigation 149 7 Consent to treatment and informing the patient 153 Basic principles 154 Requirements of a valid consent 154 How should consent be given? 154 Right to refuse treatment 157 Taking one's own discharge 160 Definition of mental capacity under the Mental Capacity Act 2005 161 Hunger strikes 163 Amputation of healthy limbs 163 Defences to an action for trespass to the person 164 Mental Capacity Act 2005 165 Mental Health Act 1983 169 Giving information to a patient prior to consent being obtained 169 Non-therapeutic procedures 173 Giving information to the terminally ill patient 174 Notifying the patient of negligence by a colleague 176 No decision about me, without me 177 8 Data protection: confidentiality and access 181 General Data Protection Regulation (including Data Protection Act 2018) 181 Duty of confidentiality 188 Caldicott Guardians 203 Freedom of Information Act 2000 204 DNA databases 207 Access to Medical Reports Act 1988 208 9 Record keeping, statements and evidence in court 213 Record keeping 213 Statements 218 Evidence in court 223 Defamation 226 Internet and social media 228 10 The nurse and employment law 231 Human rights 232 Contract of employment 233 Statutory provisions covering employment 238 Unfair dismissal 248 Trade union rights 253 Public and private employees 254 Discrimination: The Equality and Human Rights Commission 254 Equality Act 2010 255 Agenda for Change 264 11 The nurse as a registered professional 269 Background to the establishment of the Nursing and Midwifery Council 269 Nursing and Midwifery Council 270 Registration and removal 271 Professional standards and codes of practice 281 Education and training 281 Post-registration revalidation and continuing professional development (CPD) 282 Fitness to Practise Annual Report 2016/17 282 Professional Standards Authority for Health and Social Care (PSA) (formerly the Council for Healthcare Regulatory Excellence (CHRE)) 283 Nursing associates 284 12 Health and safety and the nurse 288 Statutory provisions 288 Corporate manslaughter and corporate homicide 311 Common law duties: employer's duty 312 Remedies available to an injured employee 314 Special areas 316 Part II Specialist areas 341 13 Children and young persons 343 Consent to treatment 344 Child protection 354 Parental care and the nurse 363 Disciplining a child 364 Education of children in hospital 366 Adolescents 367 Deprivation of liberty of children and young persons 367 Court proceedings and the child or young person 370 14 The nurse on the gynaecology ward 376 Abortion 376 Sterilisation 388 Female circumcision 394 15 Acute care 399 Civil liability procedures and practices in theatre 400 The theatre nurse and the scope of professional practice 402 Accidents in the theatre 403 Consent in the theatre 404 Recovery room nursing 406 Transfusions and blood contamination 407 Organ transplantation 408 Intensive care units: resource pressures 414 Review of critical care services 415 16 Learning disabilities and safeguarding people 421 Acting in the best interests of a mentally incapacitated adult 422 Deprivation of Liberty Safeguards (DoLS) (Bournewood) 425 Carers 428 Court of Protection and Code of Practice 430 White Paper Valuing People 432 Safeguarding vulnerable adults 435 Sexual relations and related issues 435 Property 438 Direct payments 439 Registration and inspections 442 17 Nurse educator and researcher 447 NMC and standards in education 447 Record keeping by teachers 448 Liability for instructing others 449 Hearing about unsound practices 450 Employment law 450 Legal aspects of research 451 Health Research Authority (HRA) 455 Confidentiality 456 Consent 457 Health Education England 460 18 Legal aspects of the care of older people 464 Rights to care 465 National Service Framework for Older People 466 Intermediate care 467 Consent to treatment 468 Force, restraint and assault 469 Medication and the confused older patient 472 Dementia 473 Standard of care 476 Risk management 479 Abuse of older people 480 Mental Capacity Act 2005 and decision making for the mentally incapacitated adult 483 19 Nursing the mentally disordered 488 Informal patients 489 Patients detained under mental health legislation 490 Holding power of the nurse 491 Compulsory detention of an informal inpatient 492 Compulsory admission 492 Definition and role of nearest relative 496 Role of the approved mental health professional 496 Informing the patient and relatives 497 Consent to treatment provisions 499 Community provisions 503 20 Accident and emergency, outpatients, genito-urinary departments and day surgery 516 Accident and emergency department 516 Outpatients department 524 Genito-urinary medicine 526 Day surgery 527 21 Human fertility and genetics 531 Artificial insemination 532 Human Fertilisation and Embryology Act 1990 as amended by 2008 Act 535 In vitro fertilisation (IVF) 538 Embryos 540 Confidentiality 545 Surrogacy 546 Conscientious objection 549 Genetics 549 Gene therapy and genetic diagnosis 550 Gender selection 552 Genetic screening and testing 552 Cloning 555 22 Community and primary care nursing 561 NHS and social services provision 562 Funding of long-term care 565 Care Act 2014 568 Human rights and care homes 577 Delayed discharges 579 Carers 582 Negligence 583 Safety of the community professional 585 Consent to treatment 588 Protection of property 591 Disclosure of information 591 Criminal suspicion 591 Standards: care homes 592 Community matrons 593 The specialist community public health nurse 593 The school nurse 594 The clinic nurse 596 The practice nurse 597 Developments in technology and structure 599 23 Scope of professional practice, clinical nurse specialist and consultant nurse 604 Scope of professional practice 604 Delegation and supervision 607 Nurse consultants 608 Clinical nurse specialists and specialist nurses 608 Concerns about developments in scope of professional practice 609 Scope of professional practice in primary care 611 Scope of professional practice in theatre nursing 612 Scope of professional practice in emergency nursing 612 Scope of professional practice and X-rays 613 NHS 111 (formerly NHS Direct) and walk-in clinics 613 Modern matrons 614 Agency nurses 615 Healthcare support workers 615 Part III General areas 619 24 Legal aspects of property 621 Principles of liability 622 Administrative failures 623 Exclusion of liability 623 Property of the mentally incapacitated patient 624 Mental Capacity Act 2005 625 Day-to-day care of money 626 Power of attorney 627 Court of Protection 628 Protecting patients from relatives 629 Returning the patient's property 629 Staff property 630 Gifts 631 25 Legal aspects of public health 634 Public health legislation 634 Notifiable diseases 636 Cross-infection control 638 Health and Social Care Act 2008 639 Health Protection Agency (now Public Health England) 641 Public Health England 642 Tuberculosis (TB) 642 Hepatitis 642 HIV-infected persons and AIDS patients 643 Vaccination 646 Blood donors 648 Confidentiality 649 26 Handling complaints 654 Methods of complaining 655 Handling complaints 657 Hospital Complaints Procedure Act 1985 and the Wilson Report 658 Complaints procedure 2004 659 Complaints procedure 2004 and 2006 659 Complaints procedure 2009 660 The Health Service and Parliamentary Ombudsman (HSC) 664 The House of Commons Select Committee 665 Healthwatch England 665 Local Healthwatch (formerly LINKS) 666 Independent Complaints Advocacy Service (ICAS) 667 Patient Advice and Liaison Services (PALS) 667 Other quality assurance methods 668 Complaints relating to detained patients 668 Secretary of State inquiries 669 The NHS Constitution 669 Review of NHS complaints system 670 27 Legal aspects of medicines 674 General principles 675 Controlled drugs 677 Problems in the administration of medicine 679 Management of errors or incidents in the administration of medicines 681 Self-administration by patients 685 Covert administration of medicines 686 Nurse as prescriber 688 Group protocols or patient group directions 689 Nurse prescribing: independent and dependent (subsequently known as supplementary) prescribers 690 Role of the pharmacist 693 Safety of medicines 693 Product liability and drugs 694 Misuse of drugs 694 National Prescribing Centre 696 Availability of medicines within the NHS 696 28 End-of-life care and death 702 End-of-life care 703 Definition of death 705 Importance of exact time of death 706 Legality of switching machines off 707 Not for resuscitation 712 Patients refusing treatment 714 Relatives and treatment of the patient 716 Advance decisions to refuse treatment (living wills) 720 Certification and registration of death 721 Disposal of the body 724 Post-mortems 724 Deaths that have to be reported to the coroner 725 Inquests 725 Recommendations of the Shipman Inquiry 728 The Coroners and Justice Act 2009: overview 731 Property of the deceased 732 Wills 732 29 Complementary and alternative therapies 739 Definitions of complementary and alternative therapies 740 The NMC practitioner as a complementary therapist 740 Liability for using complementary therapy at work 741 Patients receiving complementary therapies 742 House of Lords Select Committee 744 Herbal medicines and acupuncture 744 Complementary and Natural Healthcare Council (CNHC) 745 30 The future 751

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