Nicola Meeres

Chapter Contents

Introduction

The society in which we live is an increasingly litigious one and as such it is in the best interests of those working in the emergency department (ED) to keep up to date with the relevant areas of law. This chapter highlights the key areas where knowledge of law is essential and discusses some of the legal dilemmas that may arise. Attendance, assessment, treatment and care, consent to treatment, detention of patients, confidentiality, the police, the press and staff health and safety are considered.

Law in the UK

The four countries of the UK have developed separate legal systems. England and Wales have identical legal systems and whilst the law in Northern Ireland has developed along similar lines, Scottish law has not. In this chapter, the law stated applies to England and Wales: where there are marked differences in Northern Ireland and Scotland, these will be noted. Otherwise, the reader can assume that the law is broadly applicable across the whole of the UK.

The two main sources of law are statute law and case law. Statute law is created either by Acts of Parliament or through a system of delegated legislation. Statutory Instruments, or Rules, form part of delegated legislation and they empower statutory bodies to expand or amend law for enactment by the Secretary of State. Delegated legislation has become increasingly important due to the pressures on parliamentary time.

Case law has developed through the judicial system as judges make decisions on the interpretation of law within the court setting. Once an outcome has been reached then a precedent is set for all other judges to follow in similar circumstances. Decisions made are binding on all courts below that where the precedent was set. For example, decisions made by the House of Lords are binding on all lower courts in the UK, but the House of Lords can overturn its own decisions and The European Court of Justice can set precedent for member states. Case law is of particular relevance to health care (Montgomery 2002).

Department of Health circulars and the Nursing and Midwifery Council (2008) The Code: Standards of Conduct, Performance and Ethics for Nurses and Midwives are not legally binding but they are recommended practice. The Nursing and Midwifery Council was established under the Nursing and Midwifery Order (2001), came into being on 1 April 2002 and has authority to prepare rules that carry the weight of law. The Code (Nursing and Midwifery Council 2008) is ‘about being professional, about being accountable, and being able to justify your decisions’, laying a moral responsibility rather than a statutory duty on members of the profession. A marked failure to abide by The Code could, in turn, lead to the Nursing and Midwifery Council using its disciplinary function, with legal implications of removal of the nurse’s name from the register.

Classification of law

Law may be classified in various ways; one of the main divisions of law is civil and criminal law. Criminal law is concerned with the relationship between the state and individuals. Criminal offences are committed against the state and are punishable by the state, e.g., drug offences and theft. Civil law is concerned with the rights and duties of individuals towards each other. Legal action is taken by a private citizen rather than the state, and a successful outcome results in an award of monetary compensation only, e.g., a patient suing a hospital for damages following some harm that has resulted from treatment or the lack thereof. Some civil wrongs can also be crimes, e.g., assault and battery and gross negligence, which could become manslaughter.

Probably the two most relevant areas of civil law in the ED are firstly negligence, as this relates to the standard of care given to the patient. And secondly the law on assault and battery, as this is relevant to the patients’ rights and encompasses where the giving of consent may act as a defence against a charge of assault and battery.

Attendance

There is a clear legal duty on the hospital running an emergency service to see and treat all those who attend. Purely by virtue of their coming within its doors, the hospital accepts responsibility, even without formally admitting them. A failure to treat those who present themselves could be negligence.

Many people who attend the ED are under the influence of alcohol and/or drugs and can be both difficult and disruptive. Healthcare professionals have an obligation to undertake clinical assessment before any decision not to treat is made, even in circumstances where a patient is uncooperative. For example, a hypoglycaemic patient will present as aggressive and uncooperative, often appearing drunk; left untreated hypoglycaemia is life-threatening. The onus is on the nurse to ensure sufficient history or investigation has taken place to determine whether there is a clinical cause for the behaviour. Once such assessment has taken place and the outcome been documented, removal or refusal to treat can be ordered with the support of security staff or the police when appropriate.

In such situations, security staff are allowed to use reasonable force to protect themselves, prevent injury or damage to property and to use reasonable force to contain uncooperative persons until the police arrive. Theoretically this situation could possibly give rise to a claim of assault and battery against security staff and/or the police; however, where reasonable force as opposed to excessive force can be identified, this is unlikely to happen or to be upheld.

The situation would be different if those causing these difficulties were not there as patients, but as friends or relatives, or if the patient had already been seen and treated. In this case, the individuals can be asked to leave; a failure to do so would mean they were then trespassing on hospital property and can be evicted.

It is imperative that all incidents of this nature should be accurately and thoroughly documented.

Assessment

Most EDs have a system of assessing the urgency of patients’ conditions on arrival. The criteria used to allocate patients to certain treatment groups largely rely on some degree of diagnosis. For the nurse, the crucial issue of undertaking patient assessment is whether he has sufficient knowledge to make an assessment competently, act on this assessment and to know his own limitations. Assessing a patient as less critically ill than in fact is the case, with a subsequent delay in treatment, could result in negligence.

The Nursing and Miwifery Council’s Code (2008) makes a nurse undertaking such roles personally accountable for his practice, that is, answerable for all acts and omissions and for the maintenance of his/her professional knowledge and competence. However, The Code also states that the nurse must ‘recognize and work within the limits of his competence’.

If the nurse is required to carry out patient assessment, the manager must provide the necessary training and carry the legal responsibility of delegating appropriately, as there can be negligence in delegation (Cornock 2011b). In addition, where patient assessment is seen as part of the nurse’s role, the employer will be vicariously liable for any negligence of the employee. This employer liability arises from the old law of master and servant relationship, where the employer has to carry this legal responsibility by reason of having a contract with the employee. This vicarious liability may also exist with agency staff, but its extent may depend on the exact nature of the contract.

Under Section 2 of the Limitation Act (1980), a case for negligence must be commenced within three years of the date of the cause of the action or when the effects become apparent to the plaintiff (Pannett 1997). It may be considerably longer before the case comes to court. Section 14 of the Act also requires that the injury is significant and relates this to the plaintiff’s knowledge of the injury. The lengthy timescale underlines the importance of record-keeping for nursing and medical staff.

Treatment and care

A vitally important question is: what is the standard of care that is expected and must be reached in the ED in order to avoid potential legal repercussions? From a number of legal cases relating to medical care, it is clear that the standard must be safe care and one that is accepted as proper by a responsible body of medical opinion (Mason & McCall-Smith 2002). Reasonable, rather than excellent, skill is considered sufficient. The standard in the ED will be that considered acceptable and reasonable in the conditions and circumstances in which nursing care is given.

The standard must relate to the specialty to which it is applied. Thus, nurses new to emergency department work must be aware that inexperience can never be an excuse for negligence. This was stated very clearly in Wilsher vs Essex AHA (1988), when inexperience in the work of the neonatal intensive care unit was put forward as a reason for the doctor’s mistake in taking the wrong blood reading from baby Wilsher and subsequently prescribing the wrong level of oxygen (Tingle & Cribb 2002). Both appeal judges were emphatic that the standard of care must be that of the post held, not of the post-holder. The lesson to be learned from this is that adequate training and supervision are vital until the nurse is competent in the skills required.

The legal significance of the above applies to both the varied nature of the work as well as the range of skills of the workforce. For example, a number of people present to an emergency department with mental health problems; ideally these people should be cared for by Community Psychiatric Nurses (CPNs), but in reality most EDs do not employ CPNs directly. The general/adult trained nurses therefore have to manage these patients to the best of their ability. In these circumstances, the standard is probably not that of the CPN, but of a nurse experienced in dealing with the range of circumstances presented by those with mental health problems in this particular setting.