Law of Ethics in Nursing and Health

Brief 211982 In order to answer this question, one must assess and consider the law relating to ethics within the health professions for nurses and midwives. This will require a particular emphasis on the ideas and structures of the legal responsibilities that a midwife or nurse have to face on a daily basis through their response to a patient reporting alleged abuse whilst at work. This will require a conceptual analysis of the ethical ideas of non- maleficence[1], beneficence[2], autonomy[3], and confidentiality.

This in turn will apply to the rights of the patient. According to the scenario, a qualified nurse was informed, whilst on placement in a children’s unit, that another member of staff was being too rough with a patient and was also being rude. The patient did not wish for anyone else to be informed of it as she was worried about the repercussions and did not want to make a fuss. There is clearly a number of important issues that arise in this scenario, both legally, morally and ethically. A qualified nurse or midwife is held accountable both legally and ethically for their actions. In terms of a nurse’s legal accountability, they are bound by the regulations of statute law, the common law, and any binding European intervention. This is also subject to the law that is specifically aimed at nurses and/or midwives, as well as the professional code of conduct that binds all nurses, midwives and specialist community public health nurses. It is important to demonstrate the law that binds all individuals in everyday circumstances. In this particular scenario it is clear that two distinct areas of law are involved. These being the law relating to the tort of trespass to the person and the criminal law act of assault.

Accordingly, the tort of trespass can be divided into a battery, an assault or false imprisonment. Clearly, in this scenario the elements of particular interest are that of battery and assault.

Accordingly, a battery is the direct and intentional application of physical force to the claimant by the defendant, without having lawful justification to impose the force. Thus, the claimant must show that the defendant intended to touch him and that the touching was the direct result of the defendant’s actions. This in turn must be seen as a positive act and the defendant must not be labouring as an automaton. Equally, an assault must be an act that causes the claimant to directly and intentionally fear that a battery will be immediately inflicted on him by the defendant.

Thus, the claimant must be in fear of an imminent battery[4]. Thus, according to the scenario, it would appear that the other member of staff has by acting in a rough manner, committed the tort of either assault or battery. It is clear from this that the patient has suffered at the hands of the other member of staff. It is worth noting that the tort of battery or assault is punishable by the claimant suing the defendant. Thus, the patient will need to issue legally proceedings against the other member of staff. As mentioned above, the tort of assault or battery is also a criminal offence. The criminal offence of assault or battery to be substantiated, the prosecution must prove beyond a reasonable doubt the actus reus[5], the mens rea

[6] and the absence of a valid defence. The actus reus and mens rea are specific to the individual offence. According to the common law, the actus reus of common assault is that the victim was caused by the defendant to fear unlawful force by used.

This means that the victim is fearful of being touched. The mens rea for assault is that the defendant intended or was subjectively reckless as to the victim fearing the unlawful force being used. This means that the defendant intended the victim to be in fear or was reckless as to that consequence. It is arguably clear from the brief outline from the scenario that the patient has been unlawfully touched by the other member of staff. Due to her raising her objections to the qualified nurse this would indicate that she is in fear of it happening again.

Although she has said that she does not want to make a fuss or report it to anyone else, it is clear that she would prefer it not to occur again. Thus, the patient would have recourse to the criminal law if she was of a mind to report the incidents to the police. According to section 39 of the Criminal Justice Act of 1988, ‘Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months or to both’. Thus, if the patient wishes to proceed to charging the other member of staff with assault, the other member of staff will be tried at the Magistrates’ Court. However, if the unlawful assault is not deemed to be at a satisfactory standard then the patient can still pursue the matter under the criminal law. It is therefore worth noting the definition of a battery[7]. According to the common law[8], a battery is committed when the defendant touched or force was applied to the victim, and the defendant intended that such force or touching be administered or was subjectively reckless as to the force or touching being administered. It is clear from the brief outline of the scenario that the other member of staff has acted in a manner likely to constitute a battery as the patient has suffered unwarranted touching and/or force being applied. It is also clear from the above statutory extract of section 39 of the Criminal Justice Act of 1988, that a battery is to be treated as a summary offence and thus tried by the Magistrates’ Court. It is worth arguing however, that the unwarranted touching and/or assault may have been administered due to the legal concept of necessity. This is a concept that can act as a defence, and is used when it is deemed in the individual’s beneficence to act in that particular way.

Thus, if the member of staff had reason to believe that the patient needed any treatment that could be in her best interests then they may administer it. However, it is also worth noting that the conduct of the other member of staff, if acting under necessity, could give rise to a separate dispute under Article 8 of the European Convention on Human Rights and Fundamental Freedoms of 1950. This enshrines the right to respect for private and family life. It is clear from this right that the privilege against being touched is enshrined within Article 8. The legal question that forms the basis of this right is why should another individual have the right to touch another? Thus, according to the case of St George’s Health Care NHS Trust v S[9], the right not to touch another individual is deemed to be the right of body integrity. This supersedes the doctrine of necessity due to the idea that body integrity is protected by law.

Thus, even if the other member of staff can demonstrate that it was necessary to touch the patient, they are still accountable for the battery and/or assault in both tort and criminal law. This is also due to the idea of competence. The imposition of the breach of Article 8 will only aggravate any criminal sanction, as well as an increase in any damages claimed in the civil courts. The next important consideration in this scenario is the moral and ethical issues that the other member of staff being rough and rude brings up. It is clear from the values in medical ethics, which have been identified by Fletcher and Buka in 1999, that several items of potential conflict arise with the other member of staff’s conduct. It is clear from the identification of these values by Fletcher and Buka that they play a vital role in the development in medical ethics. As stated above, Fletcher and Buka identified and developed the principles of non-maleficence, beneficence, autonomy, confidentiality, justice[10], truthfulness and honesty[11], and dignity[12]. It is clear from the brief outline of the scenario that the conduct of the other member of staff touches on most of these ethical principles. Due to the idea of not doing anything to harm the patient, the medical practitioner needs to weigh this requirement against the need of necessity.

Again the other member of staff could argue under paragraphs 2.2 and 3.8 of the Nursing and Midwifery Council[13] code of professional conduct: standards for conduct, performance and ethics, that the patient needed the treatment, that involved being rough, administered. These paragraphs state ‘You are personally accountable for ensuring that you promote and protect the interests and dignity of patients and clients, irrespective of gender, age, race, ability, sexuality, economic status, lifestyle, culture and religious or political beliefs[14]’ and ‘In emergencies where treatment is necessary to preserve life, you may provide care without consent, if a patient or client is unable to give it, provided you can demonstrate that you are acting in their best interests[15]’. These clearly show that if a nurse or midwife can demonstrate that they are acting in the best interests of the patient then they are permitted to act without fear from the professional conduct committee. However, as already identified above necessity in a medical situation does not act as a defence in law. This is due to the principal of competence and bodily integrity. However, if the other member of staff can not show that they acted in the patient’s best interests then they have acted contrary to the idea of non-maleficence.

This will be punished by the professional conduct committee if it is proven. This is of course a crucial point as the patient may have a propensity to make up allegations that are ill founded. The next important consideration in the idea of ethics is the idea of beneficence. As mentioned above beneficence is where a medical practitioner is believed to always act in the best interests of the patient. This again encompasses the idea of necessity. It is important to note that the other member of staff will need to demonstrate that they acted under necessity. It is worth noting that this requirement could arguably be in conflict with the notion of non-maleficence, as it maybe in the patient’s best interests to do something that could cause them harm. However, it is worth noting that the ethical concept of beneficence is not an absolute obligation like non-maleficence. If the other member of staff has not acted in a manner that could be classed as necessity, then they are liable not only under paragraphs 2.2 and 3.8 of the NMC code of professional conduct: standards for conduct, performance and ethics, but also under paragraphs 1.2 and 8. This again will be subjected to the professional conduct committee. The next important consideration is the ethical concept of autonomy. As mentioned earlier this is the belief that a patient has the right to refuse any treatment suggested.

This is clearly in line with the legal argument of body integrity. It is arguable that this is a bigger component in the ethical web than the idea of beneficence. This is due to the idea that a patient has the right to refuse treatment and the medical practitioner has an obligation not to do anything to harm the patient. As the patient has the right to refuse treatment, it is clear from the brief outline of the scenario that the other member of staff has no justification to impose harm to the patient even if it could be classed as being in the patient’s best interest. Again the other member of staff could be made to account for their conduct towards the patient. This is providing that the patient wishes to take the matter further and it can be proved that they have acted contrary to the code of practice and medical ethics. However, this concept must be based and argued against the beliefs of the majority view.

This is a different notion to raise, however, when it comes to individual rights. The final considerations under medical ethics is the notions of confidentiality which in part encompasses the other ideas of truthfulness and honesty. The idea of confidentiality is where the patient discloses something to a medical practitioner in trust.

This is also held dear in paragraph 5 of the NMC code of professional conduct: standards for conduct, performance and ethics. It is clear from the brief outline of the scenario that the patient has told the registered nurse this information in confidence as the patient does not want to make this information public. There is arguably a case where the registered nurse must act in a trustworthy and honest manner. This is also embodied in paragraph 7 of the NMC code of professional conduct: standards for conduct, performance and ethics. It is clear that if the registered nurse was told by the patient not to mention the allegations of rough behaviour, then they are bound by the duty of confidentiality towards the patient. If the registered nurse breaches this obligation then they will be held liable by the professional conduct committee. It is also worth noting that if the patient does not wish to pursue this matter any further, then the registered nurse may wish to watch the other member of staff in anticipation of this action occurring again. In conclusion, a nurse is legally and ethically accountable for their actions. Accordingly the other member of staff is liable under both the law relating to the tort of assault and/or battery and the criminal offences of both assault and battery.

They are still deemed liable even if they can demonstrate that they acted due to a necessity to prevent a greater harm. Equally, the ethical standards of non-maleficence and beneficence, unless the other member of staff can seriously demonstrate that it was necessary to touch the patient, have been breached. The idea of autonomy has to be based against the majority view. The professional conduct committee would have to weigh this according. In terms of the registered nurse, if they breached the duty of confidentiality then they are also liable to the professional conduct committee.

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Footnotes

s.

[1] The Latin for which is ‘primum non nocere’ which means ‘first, do no harm’.

[2] The Latin for which is ‘salus aegroti suprema lex’ which means a ‘practitioner should act in the best interest of the patient’.

[3] The Latin for which is ‘voluntas aegroti suprema lex’ which means ‘the patient has the right to refuse or choose their treatment’.

[4] Thomas v National Union of Mineworkers [1985] 2 All ER 1.

[5] This means the ‘guilty act’.

[6] This means the ‘guilty mind’.

[7] R v Taylor, Little [1992] 1 All ER 708.

[8] Haystead v Chief Constable of Derbyshire [2000] Crim LR 758, held obiter that battery was a common law offence.

[9] [1998] 3 All ER 673. [10] This is defined as the usage of limited resources. [11] These are usually combined with the notion of informed consent. These were crucial elements in the Doctor’s Trial at Nuremberg. [12] This has the ordinary English meaning. [13] Hereinafter referred to as ‘NMC’. [14] Paragraph 2.2. [15] Paragraph 3.8.

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