Legal Issues in the Workplace

1
Legal Issues in the Workplace

• Dr David Lee
• VUT
• 2001

2
Group Work

• Spend 15 to 20 minutes
• Group into groups of 3 or 4
• Identify legal issues at your work place
• Make a list and outline the circumstances

3
The Law of Torts

• Torts Civil Wrong
• It is a Civil Law
• It relates to those acts done to a person that
  infringe their freedom of movement and safety
  from harm. It protects patients from thoughtless
  or careless actions that could damage them in any
  way

4
The Law of Torts

• The law includes the torts of
• negligence
• defamation
• false imprisonment
• assault

5
The Law of Torts - Negligence

• It means that not doing something you should have
  done, or doing something you should not have
  done, which results in damage to the person

6
The Law of Torts - Negligence

• The principle
• the person who is the subject of the complaint
  (i.e. the person who caused the harm - the
  defendant) should owe a duty of care to the
  person making the complaint

7
The Law of Torts - Negligence

• The person making the complaint (the plaintiff)
  has to be able to show that they suffered damage
  as a consequence of the breach of the duty of
  care
• He/she must prove on the balance of probabilities
  that the defendant is guilty of negligence

8
The Law of Torts - Negligence

• It is this area of Law that permits patients or
  relatives of patients to bring a legal action
  against hospitals, medical and nursing staff.
• Such actions seek financial compensation
  (damages) as a result of an alleged negligent act
  which has caused personal pain, physical or
  psychological damage and possibly financial loss
  in the present and into the future

9
The Law of Torts - Negligence

• Duty of care about relationship between people
• Every individual has a responsibility not to act
  or fail to act in a way which is reasonably
  likely to cause injury to another person

10
The Law of Torts - Negligence

• There is a duty of care between
• employer/employee
• doctor/patient
• nurse/patient
• So, not only patients but also staff, relatives
  and visitors are owed a duty of care in regard
  tot he provision of a safe environment

11
The Law of Torts - Negligence

• Principles of an action in negligence
• A patient cant take action against a nurse for
  negligence unless he/she can rove the following 4
  things. These are the principles of an action for
  negligence

12
The Law of Torts - Negligence

• 1. The defendant owed a duty of care
• A duty of care exists when a person is employed,
  on the basis of the knowledge, skills and
  qualifications that they hold, to perform duties
  to a particular standard to obtain specific
  results

13
The Law of Torts - Negligence

• 2. The defendant performed their duties below the
  required standard

14
The Law of Torts - Negligence

• 3. The plaintiff suffered damage as a result of
  the sub-standard performance of duties by the
  defendant

15
The Law of Torts - Negligence

• 4. The damage must be as a direct result of the
  sub-standard performance, and a reasonably
  foreseeable occurrence

16
The Law of Torts - Negligence

• All 4 points must be proved for a successful claim

17
(No Transcript)
18
Case study - the grazed feet

• A registered nurse assists a patient, for whom
  she is responsible, into a wheelchair to take the
  patient to the shower.
• The patient has little control over her limb
  movements, and requires assistance to get into
  and out of the chair. The nurse fails to place
  the patients feet on the footplates of the
  chair, allowing them instead to hang freely
• when they reach the shower, the nurse notices
  that the patients feet have been badly grazed as
  a result of dangling and becoming caught in the
  mechanism of the wheelchair during the ride
• the patients family are greatly distressed at
  what has happened to their mother, and bring an
  action against the nurse

19
Case study - the grazed feet

• 1. Did the nurse owe the patient a duty of care?
• 2. Did the nurse demonstrate a sub-standard duty
  of care?
• 3. Did the patient sustain damage?
• 4. Was the damage a direct result of the
  performance of the duty at a sub-standard level?

20
Professional negligence

• The law imposes a higher duty of care upon those
  who hold themselves to be professional as a
  result of specialized knowledge, skills and
  training

21
Professional negligence

• Nurses who assume responsibility for tasks that
  require more skills and education must have the
  required skills and education and be considered
  competent to perform the task according tot he
  professional standard
• your performance of procedures will be measured
  against those of the ordinary skilled nurse
  performing the same task in a similar situation

22
Vicarious liability

• What is the employer's responsibility if a staff
  member is charged with negligence?

23
Vicarious liability

• The law requires that an employer hire staff that
  are competent to perform the duties that are
  expected of them in accordance with their
  position or job description.
• It is up to the employer to check qualifications,
  references and competence

24
Vicarious liability

• This means that if an employee performs below the
  expected standard of care and causes harm to a
  patient during the course of normal employment,
  then the responsibility for the negligent act is
  placed on the employer as well as on the
  individual nurse

25
Case study

• A nurse responds to a patients call for
  assistance to move from his bed to the bedside
  chair. The nurse knows that this patient is
  particularly heavy, and that she may require
  assistance, but there is no one available to help
  at the time
• while the nurse is helping the patient, he slips
  and falls to the ground, injuring his back as a
  result. The patient sues the hospital and the
  nurse for negligence and subsequent loss of
  income as a result of his inability to return to
  his former work as a truck driver

26
(No Transcript)
27
False imprisonment - patient restraint

• The only time that health care workers can
  restrain patients is in the vent that they are
  likely to harm themselves or another person, or
  damage equipment or property

28
Different forms of restraint

• Physical - safety belts, wrist bandages, sheets
  around the patients middle
• chemicals - sedatives or tranquilizers for the
  conveniences of the staff is no longer
  appropriate
• psychological - the use of fear as a means of
  restraint

29
Group work

• What about use of cot-sides?
• Which one of the following is a case of
  negligence or false imprisonment or both?

30
Case 1

• A nurse runs a both for an elderly patient but
  fails to check the temperature of the water. As
  the patient is helped into the bath, she says the
  water is too hot, but the nurse knows that this
  patient is always saying things like that. When
  examined by the medical officer, the patient is
  found to have superficial burns to the lower
  limbs, which will take some weeks to heal

31
Case 2

• A young, intellectually disabled female resident
  repeatedly wanders away from the health care
  facility, requiring staff to be constantly on the
  look-out for her. The nurse in charge of the
  facility decides to administer sedation to the
  resident to encourage her to be drowsy most of
  the day, and so give the staff time to perform
  all their duties in the hostel. As s result of
  the sedation, the resident spends most of her
  time asleep on the bed.

32
Case 3

• An elderly, confused man is placed in a high bed
  with cot-sides placed in the upright position.
  The mans relatives had expressly requested that
  the patient not have cot sides, and there has
  been no medical order for them. The patient is
  restless during the night, trying to get out of
  the bed. He becomes wedged between the rails and
  sustains a broken wrist as a result of the
  position. The family take action against the
  hospital and the nursing staff

33
(No Transcript)
34
Assault

• It can be defined as the actual or threatened
  application of unlawful touching of another
  person
• It does not necessary mean physical attack or
  beating, it can be applied to any situation in
  which a person has an action done to them without
  their consent

35
Assault

• Assault the fear in the patient that something
  harmful may be done
• Battery actual hitting or physical act of
  hurting the patient

36
Group work

• As a division 2 nurse, make a list of 10
  situation that can be labeled as assault to
  patients

37
(No Transcript)
38
Notifiable diseases

• Health and government organizations have a duty
  to protect general public from certain kinds of
  diseases. These diseases are rapidly spread
  through close social or environmental contact,
  they are often termed communicable diseases.

39
Notifiable diseases

• SCHDULE 2
• NOTIFIABLE DISEASES
• Group A Diseases
• Australian arborn encephalitis
• Anthrax
• Cholera
• Diphtheria

40
Notifiable diseases

• Food-borne and water-borne illness (two or more
  related cases)
• Legionellosis
• Measles
• Meningitis or epiglottitis due to Hemophilus
  influerircie
• Menmgococcal infection (meningitis or
  meningococcaemias)
• Plague
• Poliomyelitis

41
Notifiable diseases

• Rabies
• Typhoid and Paratyphoid fevers
• Viral haemorrhagic fevers
• Yellow fever
• Form of Notice
• Immediate notification by telephone or other
  rapid transmission of an
• initial diagnosis-whether presumptive or
  confirmed.

42
Notifiable diseases

• Written notification to follow in the form of
  Form 1 in Schedule 3 within 7 days after the
  initial infection.

43
Notifiable diseases

• Group B Diseases
• Hepatitis, viral-all forms including
• Hepatitis A
• Hepatitis B
• Hepatitis C (enteric form)
• Hepatitis non A non B
• Hepatitis (vial, unspecified)
• Leprosy

44
Notifiable diseases

• Malaria
• Mumps
• Q fever
• Rubella (ineluding Congenital Rubella)
• Tetanus
• Tuberculosis
• Form of Notice
• Written notification in the form of Form 1 in
  Schedule 3 within 7 days
• of confirmation of diagnosis.

45
Notifiable diseases

• Group C Diseases
• Gonorrhoea (all forms)
• Syphilis (all forms)
• Form of Notice
• Written notification in the form of Form 1 in
  Schedule 3 within 7 days of confirmation of
  diagnosis.

46
Notifiable diseases

• GoupD Diseases
• Acquired Immunodefidency Syndrome
• Form of Notice
• Written notification in the form of Form 2 in
  Schedule 3 within 7 days
• of confirmation of diagnosis.

47
Notifiable diseases

• No Discrimination against patients suffering from
  one or more of these diseases

48
Patients medical records

• Which records need to be kept?
• Health organisations and their staff are required
  by law to keep and retain particular records.

49
Patients medical records

• Section 109 of the Health Services Act Victoria,
  1988 states
• 1.The proprietor of a health service
  establishment must cause to be kept in the
  prescribed manner and to be retained for the
  prescribed period the prescribed particulars of
• persons who receive care in the establishment and
  the type of care received and
• staff employed in the establishment

50
Patients medical records

• 2. A person must not during the prescribed period
  destroy or damage any record for the purposes of
  sub-section (1).

51
Patients medical records

• what this means is that the health care facility
  must keep a record of
• who the patients are
• what care they received
• Who the staff are
• and must keep these records for as long as the
  Act tells them to.

52
Patients medical records

• For how long?
• Depending on the records
• Birth and death registers, operating Theatre
  registers must be kept forever

53
Patients medical records

• Other records can be destroyed following the
  patients discharge, or a certain time after
  their last visit to the facility

54
Victoria's new Health Privacy Laws starts from 1
July 2002.

• The Act gives individuals a legally
  enforceable right of access to their health
  information which is contained in records held in
  the private sector and
• Establishes Health Privacy Principles that will
  apply to personal health information collected
  and handled in both the public and private
  sectors.

55
Victoria's new Health Privacy Laws starts from 1
July 2002.

• An individual may make a complaint through the
  Health Services Commissioner, which may apply to
  situations where health information is being
  collected, used, disclosed or held or is
  unnecessarily suspended.

56
Victoria's new Health Privacy Laws starts from 1
July 2002.

• The Health Privacy Principles will generally
  apply to all personal information collected in
  providing a health, mental health, disability,
  aged care or palliative care service and any
  other health information held or health related
  service provided by the University.

57
Victoria's new Health Privacy Laws starts from 1
July 2002.

• The Health Privacy Principles will apply to the
  collection, use and handling of identifying
  personal information that is defined as "health
  information" under the Act, providing individuals
  with a right to obtain access to their own health
  information.