‘Australian Day Surgery Nurses Association A brief refresher on negligence and vicarious liability for the health care professional Hyder Gulam * BA, BN, LLB, Post Grad Dip (Advanced Clinical Nursing), LLM RN (Vie, UK, USA), FRCNA Barrister and solicitor, Accredited Mediator (IAMA) Introduction ‘The purpose ofthis article is to provide a brief update about the law cf torts in Australia for the health care professional (HCP). The law Cf torts is where negligence is located, Ths article will cover the concepts of duty of care, standards of care and breaching of those standards. Also discussed wil be damages and defenses ltely to be to seen, and vicarious lability, inclusive of agency nursing. This article will argue that agency nurses, in some circumstances, can fll “within the concept of vicarious liability when engaged to provide rursing services by a hospital For a HCP to be found lable under 2 suit of negligence, itis ‘necessary forthe plaitiflsto show that the HCP was at fault. The success of a negligence action depends onthe plantif proving all elements of the negligence on the balance of probabilities whichis » the burden of proof in civil claims’. These elements ae that there UWas a duty of care owed by alHCP that there was a breach ofthat which fell below the standatd of care required, that the act or omission caused the dime. and thatthe damages 00 emote and reason forest that he ought as The law imposes on a medical ‘and treatment the courts have held thatthe df sa such as nurses, physiotherapists, speaking, the relationship be plait. contains the recuiite sulfide parties. This means that.there is @ pre-existing telationship, which aves rise to duty, st as that between muse ad patient, teacher Se cnee oc gil RRMA lps in the ‘contemplation’ or thoughts of a HCP as a person lly to be injured by a failure by a HCP to take care’, This can be evidenced by the provision of cae tothe plants bythe HCP as hevhis treating Co vg counts afro and consumables in Generally tients, the Standard of care Bolam v frie Hospital Management Corumitte* is regarded as the case law that determines the standard of care to test whether a HCP has been negligent: in the case of a medical man. negligence means failure to actin accordance withthe standards of reasonable competent medical men atthe time.” ‘his test does not require that the HCP “passes the highest expert, skil”* ot instead: The standard of reasonable cure and sil required & that of the ‘ordinary skilled person exercising. and professing to have that special skill “The courts in Australia have held that the determination of the standard and a decision whether that standard has been breached lies with the courts and not the professional group, according to the ‘easonable standards demanded by law". This was confirmed by the High Court in Naxis v Wester General Hospital “The courts have also held that the standard of care will need to be considered in light of the standards of practice at the time the incident occured. As Lord Denning stated in Roe v Minster of Health “Wemust not lookat the 1947 accident with 1954 spectacles”, This means that the courts will not hold a HCP liable if atthe time ofthe incident. it was not known that there was a potential for damage or injury. It will not be the standard atthe time of the tral, but will depend on what information exsted at the relevant time It is incumbent upon HCPs to take into account the professional standards and policy laid down by ther registering board (ie. the Nurses Board of Victoria) professional colleges (i.e. ANF or Royal, College of Nursing Australia guidelines), the respective health departments, their employer and any other professional body such 2s Austalian Confederation of Operating Room Nurses or the ‘Austealian Day Surgery Nurses Association. Any documentation or, Policy released by the above bodies, such as the Best Practice ‘Guidelines for Fibulatory Surgery and Procedures can be received as ‘evidence to be included in the evidential mix, coupled with expert evidence, to determine negligence by the courts, Other documents that the courts may likely eceve into evidence as, ‘what isthe appropriate standard of care, isthe Code of Professional Conduct for Nurses in Australia developed by the Australian Nursing Council, This Code isa set of expected nursing standards of nursing conduct, which identified minimum requirements for conduct in the rursing profession