Nursing and the Law Irish Association of Urology Nurses 30th January 2015 Dolores Keane BL

Regulation of Health Professionals Regulation of Medicines Professional Negligence Claims Coroner s Court Mental Health Tribunals Medical Services & Detained Persons Beginning of Life Issues End of Life issues Consent to Treatment Capacity Defective Products Genetic Screening / Stem Cells / Transplants Assisted Reproduction & Surrogacy Research & Drug Trials Forensic Science Medical Law

When something goes wrong incident inquests Coroner s Court criminal case Courts of Criminal Justice civil case employment issues (disciplinary procedures) fitness to practice hearings Other regulatory bodies Civil Courts Employer internal procedures / Employment Appeals Tribunal Medical Council An Bord Altranais Dental Council Pharmaceutical Society Optician s Board Health & Social Care Professional Council Ombudsman HSE HIQA

All sudden, unexplained, violent and unnatural deaths If death is unnatural an inquest Fact finding only No findings as to negligence Coroner s Inquest

Examples of reportable deaths Procedure at an Inquest Possible verdicts Coroner s Inquests

. incident inquests Coroner s Court criminal case Courts of Criminal Justice civil case employment issues (disciplinary procedures) fitness to practice hearings Other regulatory bodies Civil Courts Employer internal procedures / Employment Appeals Tribunal Medical Council An Bord Altranais Dental Council Pharmaceutical Society Optician s Board Health & Social Care Professional Council Ombudsman HSE HIQA

Adversarial prosecution/defendant/witnesses/evidence Burden of Proof Beyond all reasonable doubt Criminal Case

What must be proved? A duty of care A breach of that duty of care Failure to reach the required standard of care Damages Causation Harm/damage resulted from the breach of duty Civil Case - negligence

Duty of care Proximity Donoghue v Stevenson [1932] UKHL 100 Foreseeable damage Wagonmound case Fair, just and reasonable to impose liability Caparo v Dickman [1990] What about Third Parties? Goodwill -v- British Pregnancy Advisory Service [1996] 2 All ER 161 Palmer v Tees Health Authority (1999) EWCA Civ 1533 Di Marco v Lynch (USA) Reisner v Regents of University of California Rpt.2d 518(Ct.App.1995) Civil case - negligence

Breach of duty Standard of care General standard of care Special standards of care the professional Civil case - negligence

Dunne (An Infant) v National Maternity Hospital & Jackson [1989] IR 91 Alleged negligent failure to anticipate and prevent foetal distress by monitoring the status of both foetal heartbeats as opposed to both Catastrophic injuries suffered by twins in utero One died in the womb One had severe lifelong mental and physical handicap Ultimately a retrial was ordered and the case settled but the Supreme Court set out the foundation test for medical negligence Civil case - negligence

The Dunne Test 1.failure that no practitioner of equal specialist/general status and skill would be guilty of if acting with ordinary care 2.if saying he deviated from general and approved practice, it will only be negligence if the course was one no medical practitioner of like specialisation and skill would have followed (taking ordinary care) 3. if a general and approved practice is claimed to have been followed by the Defendant, he may still be liable if the Plaintiff shows such practice has inherent defects which ought to have been obvious to any person giving the matter due consideration 4. an honest difference of opinion between doctors as to a course of treatment is not negligence 5. it is not for a judge to decide between 2 alternative courses as bring preferable. A judge s function is to decide (based on the evidence) whether the conduct complied with the careful conduct of a like professional Civil case - negligence

Damages Where there is NO damages, there s NO compensation for negligence Damages can be physical, psychological, financial Interesting cases: Emeh v Kensington and Chelsea and Westminister Area Health Authorities [1985] McFarlane v Tayside Health Board [2000] Civil case - negligence

Causation The act or omission caused the damage but for the act/omission the damage would not have happened Barnett v Chelsea & Kensington Hospital Management Committee [1968] 1 All ER not be too remote foreseeable some new event hasn t broken the chain of causation Civil case - negligence

Examples Diagnosis Physical and History Collins v Mid-Western Health Board [2000] 2 IR 154 Misdiagnosis and delay Wolfe v St James Hospital [2002] WJSC-HC 7440(SC) Fitzpatrick v Midland Health Board Further investigation/review/referral Civil case - negligence

Internal procedures grievance and disciplinary procedures Good practice Employment issues / disciplinary procedures

The Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000 the allegations or complaints be set out in writing the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses. Employment issues / disciplinary procedures

principles of natural justice and fair procedures grievances are fairly examined and processed details are put to the employee opportunity to respond fully to the allegations given the opportunity to avail of the right to be represented right to a fair and impartial determination of the issues Employment issues / disciplinary procedures

Disciplinary action may include oral warning written warning final written warning suspension without pay transfer to another task, or section of the enterprise Demotion some other appropriate disciplinary action short of dismissal dismissal Employment issues / disciplinary procedures

If dismissed unfair dismissal claims presumed unfair unless employer can show substantial grounds to justify it Employer must show: dismissal was on one of fair grounds set out in the legislation fair procedures were followed it acted fairly disprove any allegation of the automatically unfair reasons for dismissal Rights Commissioner Employment Appeals Tribunal Employment issues / disciplinary procedures

Whistleblowers Protected Disclosures Bill 2013 up to 5 years remuneration Not need to have accumulated 1 year of service reasonably believe the information shows wrongdoing Deliberated false reporting is not protected Protect whistleblower s identity as far as possible Employment issues / disciplinary procedures

What information disclosure will be protected? Information about offences Failure to comply with legal obligations Miscarriages of justice Risks to health and safety Misuse of public funds Mismanagement by a public body Employment issues / disciplinary procedures

Doctors ~18,800 registered Medical Council Medical Practitioner s Acts, 1978 + 2007 Nurses and midwives ~62,000 registered Bord Altranais The Nurses and Midwives Act, 2011 Dentists Dental Council Dentist s Act 1985 Pharmacists Pharmaceutical Society of Ireland Pharmacy Act 2007 Health and Social Care Professionals Health and Social Care Professional Council Health and Social Care Professionals Act 2005 Opticians The Optician s Board Optician s Act 1956 Fitness to practice

The Nurses and Midwives Act, 2011 Possible Grounds Preliminary Proceedings Committee Fitness to Practice Hearings Appeals Fitness to Practice

Ombudsman Part 9 health Act 2004 Complaints the Ombudsman may investigate unfair administrative practices public health services not clinical judgment Possible outcomes? HSE HIQA Other regulatory bodies

The court process Various fora requiring medical evidence The healthcare professional as witness Practice and Procedure