Nursing Law and Ethics

John Tingle, Alan Cribb

• Publisher: Wiley-Blackwell
• Year: 2013
• ISBN:
  9781118492338
• Edition: 4
• Topic: Medicine
• Subtopic: Nursing

Nursing Law and Ethics explores a variety of key legal and ethical issues in nursing practice using a thought-provoking and holistic approach. It addresses both what the law requires and what is right, and explores whether these two are always the same.

The book provides an overview of the legal, ethical and professional dimensions of nursing, followed by exploration of key issues in greater depth. This edition features updated legislation and new material on patient safety.

• Key topics are accompanied by both a legal and an ethical perspective, covering both law and ethics
• Case examples throughout place concepts in a real-life context
• Written by experts in the field and includes contributions from leading nurses, lawyers and ethicists

Accessible, relevant, and comprehensive, this title is ideal for pre- and post-registration nurses.

Part One: The Dimensions

1

The Legal Dimension: Legal System and Method

John Hodgson

Reader in Legal Education, Nottingham Law School, Nottingham Trent University, Nottingham

We live in a society dominated to an increasing – some would say excessive – extent by legal rules and processes. Many of these apply to all of us – for instance, the rules relating to use of the road as driver, passenger, cyclist or pedestrian, while others apply only to specific groups. In this chapter we will concentrate on the law as it affects the provision of health care. It is easier to do this than to look at the law relating to nurses or nursing, since for many purposes there is no legal distinction between different health care professionals and their contributions to the overall health care system. Before we do this, however, it is necessary to look briefly at the main features of the legal systems in which health care operates. There are four distinct legal systems within the United Kingdom. Northern Ireland has had a substantial measure of legislative and executive devolution since the 1920s, although this was often suspended due to civil unrest. A new devolution settlement for Northern Ireland and first-generation ones for Scotland and Wales were enacted in the 1990s.¹ The Welsh initially sought and obtained more restricted powers, but these have since been extended. The devolved legislatures are not sovereign, they exercise defined powers formally delegated by the Westminster Parliament, although any attempt to curtail or modify either the legislative or executive competence of the devolved provinces would be politically hazardous. The provision of health care through the National Health Service (NHS) was originally established throughout the United Kingdom by legislation of general application, but health is now a devolved matter, therefore in Scotland and Northern Ireland it is under the authority of the Scottish and Northern Irish Ministers, and legislative changes are made by the Scottish Parliament and Northern Ireland Assembly. In Wales the Welsh Assembly Ministers have had executive authority for over a decade, but the Welsh Assembly has only recently acquired legislative competence in relation to primary legislation. The Westminster Government and Parliament now have direct authority only over the NHS in England.

This chapter will concentrate on the English position. It is also possible to draw valuable illustrations and guidance from other countries outside the United Kingdom, particularly in relation to general legal principles, rather than the detail of legislative provisions, although these are influential rather than decisive.

1.1 The law and its interpretation

In this section we will look briefly at the various sources of law operating in England² and at some of the methods used by judges when they have to interpret and apply the law.³

1.1.1 Statute law

Most English law is in the form of statutes. These are made by the Crown in Parliament. Since 1689, by virtue of the Bill of Rights, the Crown in Parliament has been the supreme legislative body in England, and subsequently in the United Kingdom. A statute, or Act of Parliament, results from a bill or proposal for a statute. The bill may be proposed by the Government or by any individual MP or member of the House of Lords. It is debated and approved, with or without amendment, in both Houses.⁴ Once approved in Parliament by both Houses, the bill receives formal Royal Assent. Statutes have been passed on almost every topic imaginable. Among those of direct relevance to the health care professions are the following:

• The series of statutes establishing the NHS and subsequently modifying its structure and organisation. The National Health Service Act 1946 carried through Nye Bevan's project to secure a national, public, health service. Today the principal Act is the National Health Service Act 1977, but this has been amended and supplemented many times – for example, by the National Health Service and Community Care Act 1990, which introduced NHS Trusts and the internal market; the Health Act 1999, which introduced Primary Care Trusts and the Commission for Health Improvement; the Health and Social Care Act 2001, which made numerous changes to community health provision; the Health and Social Care (Community Health and Standards) Act 2003, which among other things created Foundation Trusts; and the Health Act 2009, which among other things introduced the NHS Constitution. The Health and Social Care Act 2012, which among other things extends GP commissioning and restructures NHS management regulation, recently continued this process of amendment and development.
• The Acts regulating the health care professions, such as the Medical Act 1983 for doctors, and the Nurses, Midwives and Health Visitors Act 1997.⁵

Statutes generally provide the broad framework of rules. Thus section 1(1) of the National Health Service Act 1977, in its latest form after amendment, provides:

It is the Secretary of State's duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement – (a) in the physical and mental health of the people of those countries, and (b) in the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with this Act.

This is called ‘primary legislation’ because it sets out the principal foundational rules. More detailed regulations are contained in statutory instruments, which are made by ministers (or in practice by their civil servants) under powers conferred by a relevant statute. This is referred to as ‘secondary legislation’ because it deals with matters of detail dependent on the general powers given by primary legislation. So, for instance, the provision of general medical services is governed by sections 28C to 34A of the National Health Service Act 1977, which provide for regulations on a variety of topics, including: the manner in which, and standards to which, services are to be provided; the persons who perform services; the persons to whom services are to be provided; and the adjudication of disputes.

In theory the Crown in Parliament can pass a statute on any subject whatever, and may also repeal any existing legislation. So in theory Parliament can accordingly legislate for the execution of people on some arbitrary ground, such as having red hair. This is subject to three very different qualifications, as follows:

(1) Parliament can only operate within the scope of what is politically and socially acceptable. This not only means that the Red-haired Persons (Compulsory Slaughter) Act will never see the light of day, but more importantly that legislation on such contentious issues as abortion or euthanasia is not undertaken lightly.

(2) By virtue of the European Communities Act 1972, Parliament has granted supremacy to the legislation of the European Union (EU) in those areas covered by the Treaty of European Union and the Treaty on the Functioning of the European Union. This can mean that existing parliamentary legislation is found to be incompatible with EU law, although the courts will always try to interpret the two pieces of legislation consistently with each other, and it can even mean that new legislation must be disregarded.⁶ In practice EU law does not really have much specific bearing on medico-legal and ethical issues, although since it does deal with recognition of qualifications and many equal-pay and equal-opportunity issues in employment law, it may have an impact on the professional life of many nurses. EU free trade and competition rules apply to drugs and medicines as they do to any other products, and they feature in much of the case law. The EU also regulates the provision of services, and this includes private medical services with a cross-border element, as well as public medical services to the extent that they are in competition with private provision.

(3) The Human Rights Act 1998 came into full effect on 2 October 2000. This Act is designed to give effect in English law to the rights conferred by the European Convention on Human Rights and Fundamental Freedoms (ECHR) (‘Convention rights’). This has been in effect since 1954, and was originally binding on the United Kingdom internationally through the European Court of Human Rights and the Council of Europe, but not as part of our own legal system. So even if rules of English law, whether in statutes or otherwise, were inconsistent with the Convention, they prevailed, although the United Kingdom might then be held to be in default by the European Court of Human Rights. This has now changed as follows:

• Each new bill must be certified by the Minister responsible to comply with the Convention rights, or an explanation given as to why it is appropriate to legislate incompatibly.
• English law must be construed so far as possible to be compatible with the Convention rights. The courts have now made it clear that they will exercise this power robustly, as explained later.
• If an Act is found by the courts to be incompatible with Convention rights, the judges may make a declaration to that effect and it will be up to the Government to invite Parliament to make the necessary changes.
• The courts will have regard to decisions of the European Court of Human Rights when interpreting English law.
• All public bodies must act in accordance with the Convention. This includes the various component parts of the health service.

Judges must interpret all statutes to conform to Convention rights ‘so far as it is possible to do so’. Although the full implications of this are still being worked through, the approach of the judges is to first consider what the social or other policy purpose of the legislation is, then whether there is a breach of Convention rights if the legislation is interpreted naturally. If there is, but this was clearly intended because of the overall structure of the Act, or the issues are complex and far-reaching, the judges will be reluctant to impose an alternative interpretation. Where they can work ‘with the grain’ of the legislation, especially where the incompatibility appears accidental and there is no need to address fundamental policy issues, the courts will ‘read down’ the actual words used and substitute a form of words that secures respect for Convention rights.⁷ The Convention confers a number of rights on people. Some of them are substantive in nature, such as the right to life and the right to freedom of expression, while others are procedural, such as the guarantee of a fair trial. This applies to disciplinary proceedings and requires that there be an independent and impartial tribunal. This may be problematic for bodies such as the Nursing and Midwifery Council (NMC) which have been responsible for the investigation and adjudication of complaints and have had difficulty in developing systems which provide for the necessary degree of independence.

Some areas of medico-legal significance are likely to be affected by the Act. One example is the detention of mentally impaired people. This is permitted in principle under Article 5, where it is necessary for the protection of the patient or others and there is the safeguard of an appeal to an independent judicial body independent of the executive government.⁸

In 1998 in the case of R v. Bournewood NHS Trust, ex parte L the House of Lords approved under the doctrine of necessity the use of informal measures to keep ‘compliant’ patients who lacked the capacity to consent in hospital witho...

Table of contents

• Cover
• Title page
• Copyright page
• Notes on Contributors
• Preface to the Fourth Edition
• Preface to the Third Edition
• Preface to the Second Edition
• Preface to the First Edition
• Part One: The Dimensions
• Part Two: The Perspectives
• Table of Cases
• Table of Statutes
• Index