Nursing Complaints, Claims and Criminality

Nursing Complaints and Claims Introduction

Generally, the law imposes a duty of care on any health care practitioner in situations where it is “reasonably foreseeable” that harm to patients through their actions or omissions is possible. This is the case regardless of whether that is a nurse, midwife, nurse trainee, health care assistant or other practitioner. It exists when the practitioner has assumed some sort of responsibility for the patient’s care. This can be basic personal care or a complex procedure.

To discharge the legal duty of care, health care practitioners must act in accordance with the relevant standard of care. This is generally assessed as the standard to be expected of an “ordinarily competent practitioner” performing that particular task or role. Failure to discharge the duty to this standard may be regarded as negligence.

Nursing Complaints

If you wish to complain about someone on the Nursing and Midwifery register, but you are not sure about whether or not to make a referral, you can speak to someone in thier new referrals team. They will technically guide you as to process and what is required.

You’ll be asked a few questions to make sure some basic criteria are met, if your concern or complaint is about a nurse or a midwife, the member of the new referrals team will suggest you contact the nurse, midwife or nursing associate’s employer.

On approach to the employer (frequently a hospital trust) you will find yourself being passed either to a senior nurse with responsiblty for complaints or you will be handed over the Patients Advisory Liason Service. (PALS) Dont be fooled Pals is essentially the Hospitals legal department frankly pretending to be a patients advocacy group.

However, these complaints do have thier place, they may result in an investigation and these can be very helpful. In many cases though, patients often become frustrated by the lack of progress and the sometimes quite obvious desire by the investigators for your claim to just go away.

If you feel you have suffered an injury as a result of bad nursing, often the best route is to begin a claim and then have your lawyer report the negligence to the NMC. That is much more difficult to just sweep under the carpet and patients often have the upper hand from day one.

Nursing Claims

Typical claims against nurses generally fall into one of the below catagories:

  1. Wrong or delayed diagnosis
  2. Communication failure or ‘poor attitude’
  3. Delayed referrals
  4. Prescribing errors
  5. Complications following procedures such as ear syringing, cryotherapy, suture removal, phlebotomy, cervical smears and injections
  6. Contraceptive advice or treatment complications

In the same way that doctors are held to a certain standard of care, so are nurses. A nurse has to perform their job in the same way any other nurse in a comparable situation might be expected to. When a nurse’s action or failure to act is inappropriate, he or she may be held legally responsible for the outcome of negligence when it results in injury. There are four basic elements to a nursing malpractice case, and they are the same elements that are applied to any medical malpractice case:

  1. Duty of care –A nurse owes a duty to uphold the accepted standard of care and to keep the patient’s environment safe.
  2. Breach of duty –When a nurse fails to uphold the expected duty of care for her patient.
  3. Causation –In order to prevail in a nursing malpractice action, you must be able to draw a direct line of cause and effect between the nurse’s action or inaction and the injury.
  4. Injury–The patient’s injury can be proven to be a direct result of the nurse’s malpractice.

In a case where the nurse owed the patient a duty of care, in breaching that duty the nurse’s action or inaction can be proven to have caused the patient’s injury, then the patient may be able to bring a claim at law.

Nursing Criminality

Criminal offending can affect the fitness to practise of nurses, midwives and nursing associates in a number of ways. If the criminal offending was directly linked to the nurse, midwife or nursing associate’s professional practice, it’s very likely this would be serious enough to affect their fitness to practise. For example, offences that involved neglecting, exploiting, assaulting or otherwise harming patients are so serious that it may be harder for the nurse, midwife or nursing associate to remediate. In these cases it’s more likely that regulatory action to maintain professional standards and public confidence in nurses, midwives or nursing associates will take place.

The nature of these convictions would raise fundamental questions about the nurse, midwife or nursing associate’s trustworthiness as a professional, which means the Fitness to Practise Committee of the NMC will probably need to take some action to restrict their registration.

Criminal investigations into possible offending by nurses, midwives or nursing associates can end with the police, prosecutors, or the courts taking no action. The nurse, midwife or nursing associate may be found not guilty in court, or the investigation could end before the case gets to court. For example, the court may give the nurse, midwife or nursing associate a conditional or absolute discharge.

Sometimes, the police may choose not to investigate following the findings of other organisations, such as safeguarding or social services, that the nurse, midwife or nursing associate has done something that is against the law.

It is worth remembering that very very few charges against nurses are brought are brought by the Police. Ultimately most of the requirments for a criminal offence require there to be a “guilty mind” ie that the nurse knew or ought to have known that the harm caused was a likely outcome of thier action. The more serious the harm the more difficult it is to prove that link.

Published by Orange Law

A UK based Solicitor Advocate and Clinical - Dental - Surgical Specialist Outsourcing Legal Service.