The Legal and Professional Implications of an incident witnessed during clinical placement.

This paper highlights an incident that occurred during a clinical placement. It will also address any legal or professional issues that surround it. Any details of the patient or institution have been withheld to maintain confidentiality. This is in line with the Nursing and Midwifery Council (NMC) Standards of Conduct Performance and Ethics for Nurses and Midwifes (2008).

Mr John Jones had suffered a stroke and had severe difficulties with swallowing (Dysphagia). He was unable to take in any fluid or medicine orally. These had to be given via a Pecutaneous Endoscopic Gastrostomy (PEG) tube into his stomach. Mr Jones was aware of his treatment. However, during a shift a newly qualified nurse (NQN) tried to administer John’s medicine orally despite John’s refusal to accept the treatment. John was extremely upset and distressed by the nurse’s actions and verbally refused to take the drug orally. The drug was also documented to be given via the PEG tube. The incident was then witnessed by a more senior nurse who then administered the medication correctly.

This incident outlines several issues concerning legal and professional accountability. According to Dimond (2011) ‘Accountability’ is defined as how far a person can be held in law to account for their actions. This seems an appropriate definition to give because a person who has to answer to the law then has a vital responsibility. Griffith & Tengnah (2008) however points out a distinct difference between ‘accountability’ and ‘responsibility’. A responsibility means a nurse can control the way they practice. Accountability on the other hand means they are answerable to a higher authority for their practice. Dimond (2011) tells us that every nurse is accountable to criminal law, civil law, the NMC and his/her employer. A nurse who conducts a criminal act could be held into account by all four bodies or one authority only.

The NMC (2008) as a single body regulates the standards required of every nurse in accordance with legal and ethical boundaries. This is primarily via the Professional Code of Conduct, Performance and Ethics for Nurses and Midwives (2008). A principle standard as outlined by the NMC is that every nurse owes a duty of care to all patients. The duty of care was defined in the case of Donoghue v Stephenson (House of Lords) (1932) in Dimond (2011). In this case a manufacturer was found to owe a duty of care to a customer. The customer had already drunk a bottle containing a decomposed snail. Lord Atkin concluded a duty of care existed because the manufacture should have taken reasonable care to avoid injuring his customer.

This concept can be equally applied to nursing because a nurse owes a duty to care for their patients. Dimond (2011) highlights the fact that the duty of care has become a significant part of the law but how it is established has received much debate. In a recent case Kent v Griffiths and others (2000) in Dimond (2011) the difference between who is owed a duty of care was established. The case confirms the fact that nurses in providing care owe a duty to the patients they are nursing. This is upheld by the NMC (2008) in that the law will find a nurse to be ‘negligent’ if they have carelessly caused harm to a patient. Brazier (2007) and Herring (2008) also agree that the nurse has a legal duty to meet the professional standards.

Whilst administering John’s medicine it seems the NQN failed to meet several professional standards. She did not follow the policy guidelines as outlined by her employer to safely administer the drug (appendix 1). She also failed to adhere to the NMC (2008) guidance for medicine management. In which standard 8 states, the nurse:

‘Must have considered the dosage, weight where appropriate, method of administration, route and timing and must also ‘Be aware of the patient’s plan of care’.P.7

The NQN did not meet the criteria as outlined above and committed a drug error even though she had to abandon administering the drug (National Patient Safety Agency (NPSA) 2011). It is also very likely that she was unaware of John’s plan of care as she seemed to overlook his difficulty swallowing. If this is the case the NQN disobeyed NMC guidance along with the regulations of the Disability Discrimination Act (1995) in Carvalho et al (2007). The act mentions it is unlawful to discriminate against anyone with a disability. The nurse should have considered John’s dysphagia and put the provisions in place to administer his drug safely.

This is of crucial concern because if the nurse had not been stopped when trying to administer the drug she could have caused John to suffer serious harm or physical pain. Groher & Crary (2010) confirm this that John could suffer aspiration if he had taken the drug orally. It is therefore easy to see that it was vital for the nurse to consider John’s safety and identify the correct route for his drug administration. In failing to do so she disregarded the legal directives of the Medicine Act (1968) in Heffner & Lawson (2010) and the NMC (2008) standards for medicine management. It seems unclear as to why the NQN committed this error.

Kelly et al (2010) and Kelly & Wright (2009) however offer a reason for why the error took place. They find dysphagic patients become the victims of drugs errors due to the inexperience of staff. It seems plausible the NQN might have lacked the experience needed to administer the drug. However the NMC code of conduct (2008) states the nurse should work within their own level of competency. This means then that although the nurse had been stopped by a more senior nurse she should have asked for the assistance directly. This might mean that professionally due to her lack of competence her ‘fitness to practice’ is questioned.

The NMC (2008) defines ‘fitness to practice’ as the nurses suitability to be considered for or to remain on the nursing register. If the NQN is referred to the NMC because her fitness to practice is questioned she might deal with an investigation, a suspension or removal from the professional nursing register. With this however the NMC (2008) also states that ‘lack of competence’ might be an issue if over a prolonged period of time the nurse makes continuous errors. Legally the NQN might face allegations for negligence.

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