Friday 27th November 2009
Former NSWNA General Secretary Patricia Staunton gave an address to the 2009 NSWNA Annual Conference on nurses legal responsibilities in the delivery of care. She had a crucial tip: admitting your mistakes can defuse a situation.
Nurses and midwives are in daily contact with the law – just think of all your clinical record taking and drug administration, for example. However, for many the law can seem like an alien, dry and daunting subject. This makes Patricia Staunton’s address at the 2009 NSWNA Annual Conference all the more remarkable.
While it is usually an employer, rather than a nurse or midwife, who is litigated against for the negligence of an employee, awareness of what is expected of the profession in terms of duty of care can save lives, and sometimes careers, too, Patricia said.
In assessing whether a nurse’s duty of care has been met in accordance with accepted standards, a judge will assess the evidence that is provided by one’s professional peers, and reference will also be made to the patient’s clinical records. If what occurred falls below the standard that should have been expected by reference to peer professional opinion – that is, what other Australian nurses or midwives think should be done in the same situation – then the judge will be able to establish that the nurse was in breach of her duty of care.
With regards to daily nursing and midwifery practice, Patricia emphasised the importance of good clinical habits. If something happens that puts a nurse’s practice into the spotlight of legal inquiry, lawyers will trawl through the patient’s clinical notes to determine what was and wasn’t done. If a nurse administered a drug, or raised a concern with a doctor, but failed to write it down in the clinical notes, she will have no way of proving what she really did.
‘Make sure you have the habit of contemporaneous note taking,’ Patricia urged. ‘Write legibly. Learn to report objectively, and contemporaneously, instead of at the end of each shift, and avoid shortcuts in the delivery of care. You might be able to get away with shortcuts eight times out of 10, but there will come a time when you won’t,’ she warned.
Patricia also emphasised the importance of asking questions: ‘If in doubt, question and clarify. I cannot endorse that strongly enough. Learn to question. Learn to record that you’ve questioned or asked for clarification, and don’t ever be embarrassed or ashamed to say, ‘Look, I’m not sure. I’m a little uncertain about this.’
The surprise message for many nurses and midwives was the importance of acknowledging when a mistake is made. When things go terribly wrong and a patient dies or is badly injured, the staff reaction in most medical settings is to retract into a cone of silence, Patricia said. Nobody will tell family members what went wrong and consequently relatives become angry and upset and, therefore, are more likely to turn to the courts to find out what happened.
‘I have heard relatives in court saying they wouldn’t be there except nobody would talk to them; it was the only means they had of finding out what happened,’ Patricia said.
Indemnity insurance companies tend to encourage nurses and midwives to stay silent to avoid the risk of liability, but Patricia said silence can be the least productive path.
A better course of action, she suggested, is to acknowledge mistakes and apologise. Section 69 of the NSW Civil Liability Act allows for an apology to be made without it being legally interpreted as an admission of fault or guilt. According to the NSW Civil Liability Act, Patricia explained, an apology is an expression of sympathy or regret, or a general sense of benevolence or compassion, and she argued it is something that needs to be practised more often in the clinical setting.
‘Most people don’t genuinely want to litigate if they can avoid it. Some do, and you’ll never talk them out of it, but most people just want answers, and if somebody would just sit down with them and say, ‘I made a mistake,’ or ‘we made a mistake, and this is where we went wrong,’ you will be surprised how understanding people will be. I believe apologies would cut down on a lot of litigation,’ said Patricia.
A new DVD series, Law for Nurses and Midwives, will explore these issues and many others in greater detail. Patricia Staunton was instrumental in the production of the DVDs, which will be released and promoted in the coming months.
An experienced voice on nursing and the law
The Honourable Patricia Staunton, AM, is well-known to many of our members. During 15 years of service for the NSWNA she worked as an organiser, legal officer, Assistant General Secretary and finally as General Secretary between 1987 and 1995. Patricia is a qualified RN and midwife with postgraduate training in intensive care nursing. She also holds a law degree from London University and a Masters in Criminology from Sydney University. She was a member of the NSW Legislative Council, before taking up a position as a Magistrate, and was later appointed Chief Magistrate of the Local Courts of NSW. Patricia was then appointed to the Industrial Court of NSW. Nobody is better qualified than Patricia Staunton to speak about nursing and the law, or to articulate how interesting and important the law can be for nurses and midwives.