Legal issues arising from healthcare in Universities (2010)

1. Legal issues arising from healthcare in Universities (2010) Chris Cox Director of Legal Services Royal College of Nursing

2. Core competencies for practitioners • A thorough grasp of fundamental legal principles around accountability and standards of care, the assessment of capacity and law of consent, confidentiality • A clear understanding of the legislation and policy framework regulating prescribing by nurses (if appropriate) • Awareness of equal opportunities, disability, human rights and (if appropriate) mental health legislation • Knowledge of relevant professional codes of practice

3. Who owes a duty of care? • Is it reasonably foreseeable that someone could be affected by your actions? • Relevance of contract of employment in defining scope of your duty to care • Duty of care to colleagues? • Duty of care to non-patients? • Delegation • Can more than one ‘person’ be in breach of a duty to care to the same patient in relation to the same incident? • Primary (systemic), personal and vicarious liability

4. Professional (or clinical) negligence • Duty of care • Breach • Damage • Get behind the label

5. Standard of care Ordinarily competent practitioner in that particular field (Bolam) • Common practice (Bolitho) • Innovative treatment • Keeping up to date • Specialist • Inexperience • Documentation

6. Advancing roles • GMC guidance • Delegation and professional guidelines (training, qualification, knowledge, risks) • Compliance with legislation where law prescribes who may perform a particular task • Legal training together

7. Summary • The law generally doesn’t prescribe who must undertake the majority of health care procedures • It is concerned with the appropriate standard of care, as reflected in common practice, i.e. that which is acceptable to a responsible and relevant body of professional nursing/medical etc opinion • If you are confident that you have the knowledge, skills and experience to perform that task or role to the requisite standard, then there should be nothing to stop you doing so

8. Relevance of indemnity arrangements? • Legal accountability of individual practitioner • What is vicarious liability? • Practitioner and employer each liable for the same damage (‘joint tortfeasors’) • Civil Liability (Contribution) Act 1978 – apportionment based on respective contributions to the damage • Can the employer also seek an indemnity from the employee under the contract of employment? Lister v Romford Ice (1957)

9. Elements of a valid consent (common law) • Legally competent • Suitably informed • Freely given • Fundamental principle: right to consent or refuse treatment

10. Who is competent? • Age of capacity – presumed to be competent once 16 years (MCA applies to 16+) • Under 16 years? Gillick v West Norfolk and Wisbech AHA (1985) - (Fraser guidelines) ‘sufficient understanding and intelligence to understand fully what is involved’ • R (on the application of Axon) v Secretary of State for Health and the Family Planning Association (2006) • Child/young person withholding consent (under 18 years)

11. Mental Capacity Act 2005 - overview • 10 years of deliberation; 68 sections; 7 schedules • Code of Practice • Key principles: presumption of capacity; support in making decisions; individual autonomy even if unwise; best interests test; least restrictive of basic rights and freedoms • Test for capacity (understand, retain, use, communicate) • ‘Best interests’

12. Five statutory principles • A person must be assumed to have capacity unless it is established that he lacks capacity • A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success • A person is not to be treated as unable to make a decision merely because he makes an unwise decision • An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests • Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action

13. Capacity • Presumption of capacity • Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? • If so, does that impairment or disturbance mean that the person is unable to make the decision at the time it needs to be made? • Who assesses? Person who is directly concerned with the individual at the time the decision needs to be made • Reasonable belief of lack of capacity

14. Determining capacity • Understand treatment information (nature, purpose, consequences of) • Retain treatment information • Use or weigh it in the balance to arrive at a decision • Able to communicate their decision • Remember: lack of capacity means a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken

15. Best interests and the MCA 2005 • Not defined • Checklist of common factors that must always be considered: • Encourage participation; identify all relevant circumstances; find out person’s views; avoid discrimination; assess whether person might regain capacity; life-sustaining treatment safeguards; consult others; avoid restricting person’s rights • Exceptions: prior advance decision; research

16. Providing care or treatment • Protection for actions carried out in connection with care or treatment • Person believed to lack capacity • In person’s best interests • Keep in mind the statutory principles • Reasonable steps to find out whether person has capacity • Reasonable grounds for believing that the action is in the person’s best interests • Limitations on protection from liability (restraint, negligence)

17. Lasting power of attorney • Differ from enduring power of attorney • 18 years or over • Written document in statutory form • Prescribed information • Signed • Identify people to be contacted on registration or say none • Attorney/s signature/s • Certificate by independent third party • Anyone (18+) can be asked to be an attorney • Before acting LPA registered with Public Guardian • Follow statutory principles when acting

18. Advance decisions • 18+ and has capacity • Refusal of specified medical treatment at some time in the future when they may lack capacity • Must be valid and applicable to current circumstances • Protection of health care professionals when acting in accordance with an advance decision • Refusal of life-sustaining treatment advance decision must be in writing, signed and witnessed and state clearly that it applies even if life is at risk • Withdrawal/change of mind • Oral or in writing

19. Single orders of Court of Protection • Role of Court • Deciding on capacity; declarations, decisions or orders on financial or welfare matters; appointment of deputies to make decisions; deciding whether LPA or EPA is valid; removal of deputies or attorneys. • Serious healthcare and treatment decisions (e.g. withdrawing ANH from patients in PVS; organ donation; non-therapeutic sterilisation • Deputies should not generally be paid care workers (conflict of interest)

20. Relevant legislation, guidance etc • Mental Capacity Act 2005 • Mental Capacity Act 2005 Code of Practice (www.dca.gov.uk/legal-policy/mental-capacity/publications.htm)

21. Sources of law on confidentiality • Common law • Statutes (Data Protection Act 1998, Human Rights Act 2000, Freedom of Information Act 2000) • Professional Codes of Conduct

22. Confidentiality and Security • Ownership • Control • Security

23. Disclosing confidential health information • Informed consent • Required by law • Public interest (prevention of crime; public health) • Research

24. Public Interest • There must be shown a real and serious risk of danger to the public for the exception to apply. • Disclosure must be to a person with a legitimate interest in receiving the information. • Disclosure must be confined to that which is strictly necessary. • Telling the patient in advance

25. Data Protection Act 1998 • Applies to personal records held in many different forms • Statutory definition of health records • Must satisfy data protection principles • Information Commissioner’s Codes of Practice

26. Data Protection Act principles • Processed fairly, and lawfully and provided that at least one of conditions in Schedule 2 is met or, in the case of sensitive personal data, at least one of the conditions in Schedule 3 • Schedule 2 and 3 conditions are a subset of overall requirement for fair and lawful (e.g. confidentiality) processing

27. Data Protection Act principles • Conditions include: consent, performance of contract, compliance with legal obligation, protection of ‘vital’ interests of data subject, ‘legitimate interests’ of data controller, legal proceedings, medical purposes etc

28. Access to Health Records • Access to Medical Reports Act 1988 • Human Rights Act 1998 • Data Protection Act 1998