Legal and Ethical Case Study: Consent and Negligence

Introduction:

BA-NUR

Monday

14/10/2019

BA-NUR

Nur10004

Michael Olasoji

Michael Olasoji

102560506

Prachi

Bhalla

Nurses must meet specified standards with constrains of the law regarding legal and ethical issues towards the patient and uphold their duty of care regarding the patient’s safety. Within Australia’s legal system, there are two primary sources of law. The first being common law, a judge made law, and secondly, statutory law, that is parliament made law (Atkins, Britton, Lacey, & S, 2012, p.59). Several legal and ethical issues with regards to the case study of Mr. Jones, a famous AFL player, and the health practitioners, arose which needed to be considered. Mr. Jones has recently fractured his left tibia and fibula while playing football. It is an open fracture that pierced his skin. In order to heal his wound, he underwent a surgery with pins and plates to align the fracture. After his surgery, he was concerned about his leg, as he felt that there was something still left in his leg. In this case, there was a breach of legal implications such as consent and negligence as the health professionals did not consider the patient’s rights and lacked duty of care. In addition, there was also unethical behaviour demonstrated by the nurses as they disclosed private information to the news reporter without asking Mr. Jones if he was willing to do that.

Consent:

“Consent is an expression of a person’s right to determine their own life” (Atkins, Britton, Lacey, & S, 2012, p.111). The nurses in this scenario breached the legal right of consent because they took photos of the patient without his permission. This breaches the

Privacy Act 1988

as it states; “it protects the personal information that is held, or collection for inclusion, in a ‘record’.” (“Taking photographs and other images | ALRC”, 2019). As the photos taken by nurses were not for any documentation use, it breached the

Privacy Act

. Furthermore, as Mr. Jones was asleep when the events occurred, he was unaware of the nurses taking photos of him. However, as the nurses posted his pictures on social media, it led to him finding out about this. As they lacked any sort of verbal, written or implied consent, they were liable of issues that occurred. As the

Code of Conduct

states; “standards of professional conduct must be shown in relation to privacy and confidentially of patients information, including when using social media” (“Nursing and Midwifery Board of Australia – Social media policy”, 2017). The inability for the nurses to follow the

Code of Conduct

has led them to face consequences which may impact their future. This could have been handled better if consent was provided by the patient when he was conscious. Notifying Mr. Jones about their intentions regarding the photo and obtaining verbal permission may have sufficed in this situation. If Mr. Jones agreed, the pictures could have been taken and the negative consequences that followed would have been reduced. This would have helped them to build a therapeutic relationship. Therefore, the nurses would not have breached the legal concept of consent and adhered to legal system.

Negligence:

Along with consent, another legal issue raised within this scenario is negligence. This is because under the

Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic)

, “care providers must exercise reasonable care to prevent service users and others from foreseeable injury.” (

Wrong Act 1958

, 2018). As this Act was not obeyed, it resulted in the breach of duty of care that was owed as it resulted in further damage done to the patient. This is demonstrated when the patient stated; “there was something left in his leg after the surgery” but, as neither the nurse nor the doctor looked further into this, the problem accelerated, leading to infection in the bone. Thus, the duty of care was not met leading Mr. Jones to face both physical harm and financial loss, due to the inability to play footy, resulting in no source of income (Makela, 2016). This could have been avoided by the health practitioners if they took some scans of his leg just to check if there was anything present. However, as this issue did occur, it could result in the monetary compensation for the injuries that were sustained. (“Compensation for personal injury”, 2019). In future, the health professionals could have listened to the patient and take an early action to avoid any further harm from occurring and not breaching the duty of care owed towards their patients. This could be done by taking scans of the surgery area where the patients are saying they are feeling pain. Thus, negligence would not be breached and further implications towards the health professionals could be avoided.

Confidentiality:

Protecting the duty of confidentially is a vital component in maintaining ethical standards within the healthcare setting. Confidentially is a form of disclosure. The

Health Service Act


(1988), (Vic)

states, “health professionals should impose themselves to compel in maintaining silence regarding patient’s information and details.” In this present case, the nurses did not gain any consent from the patient when telling the reporter that he will be unable to play football after his recovery. The nurses breached the non-maleficence ethical principle as there was harm done to the patient (Victorian Legal Aid, 2014). This was because the patient was not aware how critical the situation was as he did not gain enough information from the senior doctor. Thus, seeing this news in the paper led to him getting angry with the health practitioners. Hence, the nurse showed unethical behavior towards the patient as the information was given without Mr. Jones knowing about it.However, as the doctor did not state that Mr. Jones could not play football after his recovery, the nurse gave incorrect information to the reporter which meant that when Mr. Jones read the article, he was also getting false information. To reduce the situations where confidentially is breached in future, the senior doctor should talk to the nurse, patient and the patient’s family, so that they are aware of the situation. This would help them to understand if the patient wants his details to be published in news or not. Thus, minimizing the breach of confidentially, and respecting the rights of the patient.

Conclusion:

Abiding to the law and practicing legal and ethical issues within the healthcare scope of practice is vital. This requires the correct laws being followed, which allows the patient to have safety while under the care of health professional. Consent, negligence and confidentially are all fundamental components of legal and ethical issues health professional must abide by, in order to ensure safe practice is undertaken. In this scenario, nurses and the doctor did not demonstrate the legal and ethical issues in this clinical setting. As the nurses did not respect the human rights and values of Mr. Jones, he did not feel comfortable in hospital environment. This occurred due to the breach of consent, as his photos were taken without his permission and posted on Facebook unwillingly. As Mr. Jones was not aware of the circumstance, the decision made by nurses lacked consent and rights. The further breach an ethical implication of confidentially was made as they revealed patient’s information to a news reporter that were not revealed to the Mr. Jones. Due to the disclosure of confidential patient information, confidentially was breached. Thus, the patient’s information was not private or personal anymore. In addition, the appropriate handling of the information is required by the health professionals to maintain the patient’s privacy. Furthermore, negligence was also breached as the health professionals lacked the duty of care. This was due to the patient facing further damages as a result of the previous surgery that occurred on his left leg. This prompted the situation becoming more serious and the patient becoming antagonistic towards the health professionals. Mr. Jones has the right to have good duty of care provided to him.

References:

• Privacy Act 1988 (Cth) s 6. For more detailed discussion of the definitions of ‘record’ and ‘personal information’, see Ch 6.
• Taking photographs and other images | ALRC. (2019). Retrieved 1 October 2019, from
  

  Taking photographs and other images

  
  

• Makela, M. (2016). What You Need to Know About Negligence in Victoria | Personal Injury Law. Retrieved 6 October 2019, from
  

  Negligence in Victoria

  
  

• Victorian Legislation and Parliamentary Documents. (2018).
  
  Wrong Act 1958
  
  [Ebook] (pp. 14.55). Victoria. Retrieved from
  
  http://www.legislation.vic.gov.au/
  
• Nursing and Midwifery Board of Australia – Social media policy. (2017). Retrieved 5 October 2019, from
  
  https://www.nursingmidwiferyboard.gov.au/codes-guidelines-statements/policies/social-media-policy.aspx
  
• The Privacy Act. (2019). Retrieved 4 October 2019, from
  
  https://www.oaic.gov.au/privacy/the-privacy-act
  
• Medical confidentiality and privacy laws for health professionals. (2019). Retrieved 6 October 2019, from
  
  https://www.slatergordon.com.au/blog/understanding-medical-confidentiality-and-privacy-laws-for-health-professionals
  
• Department of Health | Standard 1. Rights and responsibilities. (2010). Retrieved 3 October 2019, from
  
  https://www1.health.gov.au/internet/publications/publishing.nsf/Content/mental-pubs-i-nongov-toc~mental-pubs-i-nongov-st1
  
• Atkins, k., acey, S., Britton, B. (2012). Ethics and Law for Australian Nurses. (2nd ed.), cambridge: cambridge university press.
• Nursing and Midwifery Board of Australia. (2013). Codes of Ethics for Nurses. Retrieve from
  
  http://www.nursingmidwiferyboard.gov.au/Codes-Guidelines-Statements/Professional-standards.aspx
  

Providing consent allows for nurse Pam to proceed with interventions with the patient. The Nursing and Midwifery Board of Australia (NMBA) states, “Nurses value informed decision-making” (NMBA, 2016, p.1).

Providing consent allows for nurse Pam to proceed with interventions with the patient. The Nursing and Midwifery Board of Australia (NMBA) states, “Nurses value informed decision-making” (NMBA, 2016, p.1).

Providing consent allows for nurse Pam to proceed with interventions with the patient. The Nursing and Midwifery Board of Australia (NMBA) states, “Nurses value informed decision-making” (NMBA, 2016, p.1).

Providing consent allows for nurse Pam to proceed with interventions with the patient. The Nursing and Midwifery Board of Australia (NMBA) states, “Nurses value informed decision-making” (NMBA, 2016, p.1).

Providing consent allows for nurse Pam to proceed with interventions with the patient. The Nursing and Midwifery Board of Australia (NMBA) states, “Nurses value informed decision-making” (NMBA, 2016, p.1).

Providing consent allows for nurse Pam to proceed with interventions with the patient. The Nursing and Midwifery Board of Australia (NMBA) states, “Nurses value informed decision-making” (NMBA, 2016, p.1).

Providing consent allows for nurse Pam to proceed with interventions with the patient. The Nursing and Midwifery Board of Australia (NMBA) states, “Nurses value informed decision-making” (NMBA, 2016, p.1).

Introduction:

BA-NUR

Monday

14/10/2019

BA-NUR

Nur10004

Michael Olasoji

Michael Olasoji

102560506

Prachi

Bhalla

Nurses must meet specified standards with constrains of the law regarding legal and ethical issues towards the patient and uphold their duty of care regarding the patient’s safety. Within Australia’s legal system, there are two primary sources of law. The first being common law, a judge made law, and secondly, statutory law, that is parliament made law (Atkins, Britton, Lacey, & S, 2012, p.59). Several legal and ethical issues with regards to the case study of Mr. Jones, a famous AFL player, and the health practitioners, arose which needed to be considered. Mr. Jones has recently fractured his left tibia and fibula while playing football. It is an open fracture that pierced his skin. In order to heal his wound, he underwent a surgery with pins and plates to align the fracture. After his surgery, he was concerned about his leg, as he felt that there was something still left in his leg. In this case, there was a breach of legal implications such as consent and negligence as the health professionals did not consider the patient’s rights and lacked duty of care. In addition, there was also unethical behaviour demonstrated by the nurses as they disclosed private information to the news reporter without asking Mr. Jones if he was willing to do that.

Consent:

“Consent is an expression of a person’s right to determine their own life” (Atkins, Britton, Lacey, & S, 2012, p.111). The nurses in this scenario breached the legal right of consent because they took photos of the patient without his permission. This breaches the

Privacy Act 1988

as it states; “it protects the personal information that is held, or collection for inclusion, in a ‘record’.” (“Taking photographs and other images | ALRC”, 2019). As the photos taken by nurses were not for any documentation use, it breached the

Privacy Act

. Furthermore, as Mr. Jones was asleep when the events occurred, he was unaware of the nurses taking photos of him. However, as the nurses posted his pictures on social media, it led to him finding out about this. As they lacked any sort of verbal, written or implied consent, they were liable of issues that occurred. As the

Code of Conduct

states; “standards of professional conduct must be shown in relation to privacy and confidentially of patients information, including when using social media” (“Nursing and Midwifery Board of Australia – Social media policy”, 2017). The inability for the nurses to follow the

Code of Conduct

has led them to face consequences which may impact their future. This could have been handled better if consent was provided by the patient when he was conscious. Notifying Mr. Jones about their intentions regarding the photo and obtaining verbal permission may have sufficed in this situation. If Mr. Jones agreed, the pictures could have been taken and the negative consequences that followed would have been reduced. This would have helped them to build a therapeutic relationship. Therefore, the nurses would not have breached the legal concept of consent and adhered to legal system.

Negligence:

Along with consent, another legal issue raised within this scenario is negligence. This is because under the

Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic)

, “care providers must exercise reasonable care to prevent service users and others from foreseeable injury.” (

Wrong Act 1958

, 2018). As this Act was not obeyed, it resulted in the breach of duty of care that was owed as it resulted in further damage done to the patient. This is demonstrated when the patient stated; “there was something left in his leg after the surgery” but, as neither the nurse nor the doctor looked further into this, the problem accelerated, leading to infection in the bone. Thus, the duty of care was not met leading Mr. Jones to face both physical harm and financial loss, due to the inability to play footy, resulting in no source of income (Makela, 2016). This could have been avoided by the health practitioners if they took some scans of his leg just to check if there was anything present. However, as this issue did occur, it could result in the monetary compensation for the injuries that were sustained. (“Compensation for personal injury”, 2019). In future, the health professionals could have listened to the patient and take an early action to avoid any further harm from occurring and not breaching the duty of care owed towards their patients. This could be done by taking scans of the surgery area where the patients are saying they are feeling pain. Thus, negligence would not be breached and further implications towards the health professionals could be avoided.

Confidentiality:

Protecting the duty of confidentially is a vital component in maintaining ethical standards within the healthcare setting. Confidentially is a form of disclosure. The

Health Service Act


(1988), (Vic)

states, “health professionals should impose themselves to compel in maintaining silence regarding patient’s information and details.” In this present case, the nurses did not gain any consent from the patient when telling the reporter that he will be unable to play football after his recovery. The nurses breached the non-maleficence ethical principle as there was harm done to the patient (Victorian Legal Aid, 2014). This was because the patient was not aware how critical the situation was as he did not gain enough information from the senior doctor. Thus, seeing this news in the paper led to him getting angry with the health practitioners. Hence, the nurse showed unethical behavior towards the patient as the information was given without Mr. Jones knowing about it.However, as the doctor did not state that Mr. Jones could not play football after his recovery, the nurse gave incorrect information to the reporter which meant that when Mr. Jones read the article, he was also getting false information. To reduce the situations where confidentially is breached in future, the senior doctor should talk to the nurse, patient and the patient’s family, so that they are aware of the situation. This would help them to understand if the patient wants his details to be published in news or not. Thus, minimizing the breach of confidentially, and respecting the rights of the patient.

Conclusion:

Abiding to the law and practicing legal and ethical issues within the healthcare scope of practice is vital. This requires the correct laws being followed, which allows the patient to have safety while under the care of health professional. Consent, negligence and confidentially are all fundamental components of legal and ethical issues health professional must abide by, in order to ensure safe practice is undertaken. In this scenario, nurses and the doctor did not demonstrate the legal and ethical issues in this clinical setting. As the nurses did not respect the human rights and values of Mr. Jones, he did not feel comfortable in hospital environment. This occurred due to the breach of consent, as his photos were taken without his permission and posted on Facebook unwillingly. As Mr. Jones was not aware of the circumstance, the decision made by nurses lacked consent and rights. The further breach an ethical implication of confidentially was made as they revealed patient’s information to a news reporter that were not revealed to the Mr. Jones. Due to the disclosure of confidential patient information, confidentially was breached. Thus, the patient’s information was not private or personal anymore. In addition, the appropriate handling of the information is required by the health professionals to maintain the patient’s privacy. Furthermore, negligence was also breached as the health professionals lacked the duty of care. This was due to the patient facing further damages as a result of the previous surgery that occurred on his left leg. This prompted the situation becoming more serious and the patient becoming antagonistic towards the health professionals. Mr. Jones has the right to have good duty of care provided to him.

References:

• Privacy Act 1988 (Cth) s 6. For more detailed discussion of the definitions of ‘record’ and ‘personal information’, see Ch 6.
• Taking photographs and other images | ALRC. (2019). Retrieved 1 October 2019, from
  

  Taking photographs and other images

  
  

• Makela, M. (2016). What You Need to Know About Negligence in Victoria | Personal Injury Law. Retrieved 6 October 2019, from
  

  Negligence in Victoria

  
  

• Victorian Legislation and Parliamentary Documents. (2018).
  
  Wrong Act 1958
  
  [Ebook] (pp. 14.55). Victoria. Retrieved from
  
  http://www.legislation.vic.gov.au/
  
• Nursing and Midwifery Board of Australia – Social media policy. (2017). Retrieved 5 October 2019, from
  
  https://www.nursingmidwiferyboard.gov.au/codes-guidelines-statements/policies/social-media-policy.aspx
  
• The Privacy Act. (2019). Retrieved 4 October 2019, from
  
  https://www.oaic.gov.au/privacy/the-privacy-act
  
• Medical confidentiality and privacy laws for health professionals. (2019). Retrieved 6 October 2019, from
  
  https://www.slatergordon.com.au/blog/understanding-medical-confidentiality-and-privacy-laws-for-health-professionals
  
• Department of Health | Standard 1. Rights and responsibilities. (2010). Retrieved 3 October 2019, from
  
  https://www1.health.gov.au/internet/publications/publishing.nsf/Content/mental-pubs-i-nongov-toc~mental-pubs-i-nongov-st1
  
• Atkins, k., acey, S., Britton, B. (2012). Ethics and Law for Australian Nurses. (2nd ed.), cambridge: cambridge university press.
• Nursing and Midwifery Board of Australia. (2013). Codes of Ethics for Nurses. Retrieve from
  
  http://www.nursingmidwiferyboard.gov.au/Codes-Guidelines-Statements/Professional-standards.aspx
  

Providing consent allows for nurse Pam to proceed with interventions with the patient. The Nursing and Midwifery Board of Australia (NMBA) states, “Nurses value informed decision-making” (NMBA, 2016, p.1).

Providing consent allows for nurse Pam to proceed with interventions with the patient. The Nursing and Midwifery Board of Australia (NMBA) states, “Nurses value informed decision-making” (NMBA, 2016, p.1).

Providing consent allows for nurse Pam to proceed with interventions with the patient. The Nursing and Midwifery Board of Australia (NMBA) states, “Nurses value informed decision-making” (NMBA, 2016, p.1).

Providing consent allows for nurse Pam to proceed with interventions with the patient. The Nursing and Midwifery Board of Australia (NMBA) states, “Nurses value informed decision-making” (NMBA, 2016, p.1).

Providing consent allows for nurse Pam to proceed with interventions with the patient. The Nursing and Midwifery Board of Australia (NMBA) states, “Nurses value informed decision-making” (NMBA, 2016, p.1).

Providing consent allows for nurse Pam to proceed with interventions with the patient. The Nursing and Midwifery Board of Australia (NMBA) states, “Nurses value informed decision-making” (NMBA, 2016, p.1).

Providing consent allows for nurse Pam to proceed with interventions with the patient. The Nursing and Midwifery Board of Australia (NMBA) states, “Nurses value informed decision-making” (NMBA, 2016, p.1).