Nursing and the law - How to protect yourself

By Niki Eastwood, registered nurse and lawyer 

Source: APNA Primary Times Summer 2023-24 (Volume 23 Issue 2)

What happens if a nurse’s mistake at work causes a catastrophic outcome for a patient? Are they likely to lose their registration to practice? Every nurse should understand their ethical and legal obligations, for their own safety and for the safety of their patients. 

To qualify for a nursing career, students are required to spend some time studying the law and the ethics of health care. This is not always a popular subject; however, in the workplace, every nurse will need to understand the profession’s practice standards, as required by the Nursing and Midwifery Board of Australia (NMBA). 

Many health care professionals around the world will know about the case of US nurse RaDonda Vaught, who was convicted in 2022 of criminally negligent homicide for a medication error that resulted in the death of 75-year-old patient Charlene Murphey.1 This is an extraordinary case. Medication errors are common and it’s rare that they result in criminal trials. Some have criticised the trial and conviction as ‘a true travesty of justice’.2 However, regardless of which perspective you take on the case, there are some important lessons we can learn from it.  

At what stage was Vaught’s action (administering the medication) a mistake? And at what stage did this action move past being just a mistake and meet the threshold for criminal conduct? To answer these questions, it’s important to remember the core principle of reasonable practice. 

Vaught admits she made an error; however, there would have been a number of alerts in place for her to stop and think about what she was doing. The coroner’s recommendation for her to be criminally tried would have been based on the absence of reasonable practice in that moment: It was unreasonable for Vaught to complete that task because she bypassed the safety mechanisms in place as she was ‘distracted’ and ‘complacent’.1  

Reasonable practice 

At its foundation in Australia, ‘reasonable practice’ means complying with all of your legal obligations. This might start with the policies and procedures that are in place within your organisation; it might also involve your profession’s recognised standards for practice, that is, the standards that are expected of you by your peers. Think about how you practise and whether your methods would meet the reasonable expectation of a peer with equivalent skills and experience. Do your practice standards reflect your qualifications and your experience? 

‘As nurses, we all need to take our legal and ethical obligations seriously and ensure that we maintain our high professional standards.’ 

As most nurses know, there’s a lot of pressure at work to complete tasks quickly and efficiently. In a busy clinic, it can be very difficult to stop and reflect. Mistakes happen. There are many reasons for things to go wrong: calculations, distractions, complacency. Fortunately, catastrophic outcomes are rare. 

Health-care organisations and individual providers need to ensure that their systems include a reasonable number of steps to help them avoid making mistakes. It’s important to step back and consider your day-to-day tasks: What are you doing and how are you doing it? For example, we now have ‘7 rights’ of safe medication administration that we need to follow. How do you ensure that you’re ticking all of these boxes all of the time, and practising safely? We need systems and workflows in place that support clinicians and enable them to comply with their obligations. This is what will protect us and our patients. 

If things go wrong 

There’s a common misconception that if a nurse makes one wrong move, they can lose their registration. We hear it all the time: ‘If you don’t do what you’re supposed to do, the board will strike you off!’  

As mentioned above, when a practitioner’s action results in a serious outcome, we need to consider which thresholds have been crossed. For the action to reach the stage of a suspended registration or a criminal conviction, these thresholds tend to be very high. 

Most serious complaints in Australian health care are considered by regulatory bodies, such as the Australian Health Practitioner Regulation Agency (Ahpra) and the respective Board, in this case the NMBA, the Office of the Health Ombudsman or the Health Complaints Commissioner, dependent on your state. This is not a criminal process and it is not meant to be punitive. The boards are made up of health care professionals and other community members, and most cases are aimed at ensuring the practitioner is able to recognise and address the deficit to avoid future mistakes. The board’s jurisdiction provides for what it can and can’t do according to the Health Practitioner Regulation National Law. 

It can be very stressful and confronting to receive a notification from one of these regulatory bodies that a complaint has been made about you. If this happens, it’s really important to reflect on whether your actions were reasonable. What happened during the event in question? Did you behave according to the expectations of another nurse with the same level of competence and experience? Did you fully understand your area of competence? Were all of the checks and balances in place to protect you and to protect your patients?  

If you do receive a board notification, you should immediately engage with your professional indemnity insurer, your union, your legal representative, or with someone who is familiar with the regulatory process. As nurses, we tend to want to resolve the situation immediately by providing information; but it will be important that you put your best foot forward, and provide the most accurate and relevant information with the support of an expert who has experience with this complex process. Get that assistance early on to avoid problems further down the track. Always communicate clearly with your insurer; remember that they are there to assist you and to obtain the best outcome for you. 

If the board finds that you’ve practised in a way that does not meet professional standards, your case might require further investigation. This is a process that can take several months (or even years), and different stages of the process can result in different outcomes. If they believe that your actions have posed a serious risk to patients, your case may be considered under an immediate action jurisdiction, in which case there will be some immediate action taken, such as restricting your practice, and imposing conditions to ensure the safety of your patients, which might include supervision or working in specific environments. 

If you meet the very high threshold of unprofessional conduct or professional misconduct, your case may be referred to a Tribunal, which would consider all of the submissions and evidence of the case, and make a decision accordingly. At that stage, you could face a period of suspension or the cancellation of your registration, but these circumstances are extreme and often occur after a lengthy investigation. 

Criminal conduct 

There have been a few high-profile criminal cases involving nurses in Australia recently, including nurses who have exploited their professional position to behave in a criminal way.  

A new ‘public interest’ test has been implemented into the Health Practitioner Regulation National Law that assesses whether a health practitioner has compromised the public’s confidence in the profession. This test asks: Do we want someone who is facing criminal charges to be in a position of trust and to provide care for patients at their most vulnerable state? Is that what you would want for your family member? 

It’s important to note that actions considered to be criminal conduct will not be covered by most professional indemnity insurance and you should familiarise yourself with what your cover includes. 

Nurses should also be aware that your behaviour outside of your nursing practice can impact your standing as a registered health practitioner. If you’re charged with criminal offences, even if they are unrelated to your practice, you might be obliged to proceed through a regulatory and tribunal process, as criminal behaviour will fail to meet the NMBA’s professional standards. 

Maintaining Professional Standards

While RaDonda Vaught’s case is extraordinary, and we are unlikely to see anything quite like that here in Australia, as nurses, we all need to take our legal and ethical obligations seriously and ensure that we maintain our high professional standards. It’s so important that we all understand the reasoning behind the regulations. Are your checks and balances in place? Are you meeting your peers’ expectations? It really is about being accountable for your practice and keeping yourself and your patients safe. 

DISCLAIMER: The information contained in this article does not constitute legal advice. Any opinions expressed are those held by the author based on industry experience, and are not representative of any organisation or profession, nor should be considered as such. 

This article has been adapted from a special instalment of APNA’s Nursing Australia podcast, Ep. 47, ‘Nursing & the Law: How to protect yourself’. The episode was produced by Leith Alexander and features a conversation between nurse and lawyer Niki Eastwood and podcast host Matthew St Ledger. Scan the QR code to listen.  

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