NRSG138 Lecture Notes - Lecture 3: Die Mannequin, Self-Defense, Bolam V Friern Hospital Management Committee
Sources of Australian Law
● Judge made or common law: Case law, precedents. Laws formed through the
decisions of the court and ongoing research of legal practitioners
● Legislation or Statutory law: Parliament has the power to create, change and
remove laws. Parliamentary law is known as an Act
Criminal or Civil?
● The law is divided into two categories: criminal and civil
● This is significant because nurses can be prosecuted in criminal and civil courts
arising from their actions as professionals
● A nurse can be cleared of criminal wrongdoing but be subject to civil legal action by
interested parties
Criminal Law
● “Rules of behaviour backed by sanction of punishment.”
● Governs our social conduct in relation to people and property
● Requires evidence/burden of proof
Criminal Law in nursing
● Nurses can, and have been convicted for criminal negligence but it is unusual
● Not usually mens rea - bad intentions
Civil or Tort Law
● Legal action taken by one (plaintiff) against another (defendant)
● Perceived harm to a person, their property or their interests
● Centred on dispute resolution
● Police and punishment absent from the process of civil law
Civil Law in Nursing
● False imprisonment
● Assault and battery
● Trespass (to the person)
● Negligence
Negligence
- Misconduct or practice that is below the standard expected of an ordinary,
reasonable and prudent person
- Places another person at risk or harm
- Applies to anyone
Criminal negligence
When the nurse’s behaviour has been so grossly negligent as to be deliberately reckless of
life, and there is a possibility that it may be prosecuted by the criminal court
The law and healthcare
● As citizens we are of course subject to all laws, but in healthcare we have further
specialised acts of parliament to follow
find more resources at oneclass.com
find more resources at oneclass.com
● On 1 July 2010 the state and territory based registration authorities, previously
responsible for the registration and regulation of health professionals within the
respective jurisdictions, were replaced by the National Registration and Accreditation
Scheme (the National Scheme). This National Scheme now operates to register and
regulate 14 disciplines of health professionals through one nationally consistent law
● The National Law is the Health Practitioner Regulation National Law, as in force in
each state and territory
● The National Law is a state and territory based legislation; it is not a commonwealth
law
● Nurses must be licensed, subject to scrutiny and possess professional indemnity
insurance
Consent
Essential elements of a valid consent:
● Voluntary
● Specific
● Informed
● Legal capacity
Types of consent
● Implied or inferred
● Verbal
● Written
Different types of situations may require one or a combination of these
Practice Implications
What if there is concern that the patient lacks sufficient understanding about the treatment to
have made a valid decision?
Nurses have a duty to take reasonable steps to ensure the person receives the necessary
additional information from the treating practitioner
Assault - contact without consent
● Criminal assault
● Self defence
● Indecent assault
Assault and Battery
Battery is the actual physical contact with the person of another, does not require that the
plaintiff prove that such contact was harmful or offensive
Law says there is no requirement to sustain injury - rather than the actual touching of the
person without their consent is unlawful and forms the basis of the action
Clinical application?
● If you touch or threaten to touch your patient without consent, you have assaulted
them
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Judge made or common law: case law, precedents. Laws formed through the decisions of the court and ongoing research of legal practitioners. Legislation or statutory law: parliament has the power to create, change and remove laws. The law is divided into two categories: criminal and civil. This is significant because nurses can be prosecuted in criminal and civil courts arising from their actions as professionals. A nurse can be cleared of criminal wrongdoing but be subject to civil legal action by interested parties. Rules of behaviour backed by sanction of punishment. Governs our social conduct in relation to people and property. Nurses can, and have been convicted for criminal negligence but it is unusual. Not usually mens rea - bad intentions. Legal action taken by one (plaintiff) against another (defendant) Perceived harm to a person, their property or their interests. Police and punishment absent from the process of civil law.
