This paper will investigate the principles of negligence and critically
explore the requirement for an awareness and understanding of the laws that are
involved for safe practice in the health service (NHS Education for Scotland, 2014).  It will consider ethical issues that nurses
will face in practice and the difficult clinical decision-making process. Not
all medical injuries are because of the result of negligence. All health
professionals strive to run a safe medical practice, however still within the
medical system errors are being made. Negligence is defined as ‘a failure to
take proper care of something’, and this seems a reasonable concept and yet stepping
to professional medical negligence it rises to three elements of negligence.
Professional negligence is a complex area of the law where, medical negligence can
only be proved if all components of the three-part test are present on the
balance of probabilities (civil law) or beyond reasonable doubt (criminal
prosecution) (Bryden & Storey, 2011). The three-part test
consists of certain considerations between the health professional and the delivery
in their duty of care. The test is based on the reasonable foreseeability of
harm (Griffith & Tengnah, 2017). These three elements
for the duty of care will not always be separately identifiable, at times they
may overlap and include other influences (Griffith & Tengnah, 2017).

A nurse has an obligation and
accountability within their responsibility to deliver a duty of care to
patients, families and carers (Nursing and Midwifery Council, 2015). Nurses are duty
bound to adhere to The Code, and although not specified it suggests that in the
section Prioritise People, “nurses must make patients care and safety their
main concern, and ensure that patients’ needs are recognised, assessed and
responded to” (Nursing and Midwifery Council, 2015). According to (Beauchamp & Childress, 2013) framework, nurses work to promote their patients’ best interests and
nonmaleficence. There four principles suggest
that all healthcare professional should act to benefit his/her patient. This framework is widely used and considers the medical
ethics in a clinical setting and despite their limitations since their
introduction they are used to teach and evaluate ethical dilemmas in healthcare
(Page, 2012).
Duty of care for personal injury was initially established by Lord Atkins naming
it the neighbour test. His Seminal judgement suggests that ‘you should treat
others as you would want to be treated yourself’, his use of the words of the
parable of the good Samaritans (Thomson Reuters, 2016). This was introduced
following the case of Donoghue v Stevenson [1932] UKHL 100,  (Chapman, 2009)

.

Although in the summary of this case Donoghue
was unable to sue Stevenson for breach of contract it was concluded that
Stevenson owed a duty of care to his consumers, so it was decided that injury
was sustained through negligence in his duty of care (Bryden & Storey, 2011).

In comparison the case of Caparo
Industries Plc v Dickman [1990] UKHL 2 however was more diverse with regards to
the question to breach of duty of care. This case was a different situation, where
there were arguments of public policy documents, so to determine negligence the
three-fold test needed to be established (Hartshorne, 2007).For this to exist there has to a
relationship of proximity between the claimant and the defendant and the foreseeability
of the defendant’s actions and the claimant’s injuries and whether it is reasonable
to impose a duty of care (Tan, 2010). This case was ruled
that there was not a duty of care to the entire public who may or may not place dependence on the report
when forming financial decisions (Hartshorne, 2007). Everyone has the right to respect for his/her private and family
life (Human Rights Act , 1998). However, a nurses’
involvement with others is complicated because the duty of care exists the
moment that the patient or client presents for treatment or care including a
stranger on the street (Dowie, 2017).
According to (Young, 2009),
there still stands a dilemma around what the duty of care means for a nurse in
practice. Can it be argued that there is not a legal duty to nurses all the
time. A duty of care will combine a legal duty, professional and ethical duty,
along with accountability on all these levels (Bond & Paniagua, 2009) suggest that nurses
are not considered everyday citizens. There is no legal requirement from a
legal perspective to a nurse to help in an accident or incident unless they are
the cause, however from a professional and ethical viewpoint they do have a
duty (Dimond, 2015). It is important to balance rights and
obligations and to consider a deontological perspective in practice (Mandal, et al., 2016).

In all cases it is for the
claimant to prove that the defendant was negligent on the balance of
probabilities, this being the case giving the civil burden of proof (Stauch, et al., 2003).Once established
that a duty of care exists between parties it is then that the claimant must
prove that a duty of care was breached (Gerard , 2008).Establishing a breach is one of the three
elements in proving negligence (Owen, 2007).
Demonstrating that the defendant is not negligent if the damage to the claimant
was not a reasonably foreseeable consequence of their conduct (Beever, 2007) It is the likelihood
of harm and whether the defendant had taken all practical precautions to
prevent harm, something that is considered what a reasonable man would do (de Villiers, 2015). The case of Bolton
v Stone[1951] AC 850, [1951] 1 All ER 1078 has  characteristics
within this case in judgement to viewing safety from the defendant’s side (Wilson, 2011).The defendant took
all reasonable measures of safety in to account, however there was always a
conceivable possibility that harm could occur, but this being so extreme an
obligation of care that unable to be imposed in all cases. The Bolam test is an
assessment that came about from the case of Bolam v Friern Hospital Management
Committee [1957] 1 WLR 582. It is used to assess the standard of reasonable
care in negligence cases (Abraham, 2017).As with (Wilsher v Essex Area Health Authority [1988] AC 1074, , 1988) on the balance of probability
could the hospital be held liable, in this case the defendant failed to provide services as per the standards set by the governing
body (Kline & Khan, 2013) Initially the Court found the defendant,
Essex Area Health Authority, liable for the infant’s injuries, citing

McGhee v National Coal Board


[

1973] 1 WLR 1 (Mandal, et al., 2016). Since the case was complex
due to there being a multitude of consequences, proving liability on the
defendant could not be entirely found (Mandal, et al., 2016).However, the
defendant was still liable to give a standard of care of that of a qualified
doctor, and in the first instance McGhee had been wrongly citied. So due to the
number of possible causes it was for the claimant to establish the likelihood
of causation. However, harm is unacceptable regardless of the consequences (Mandal, et al., 2016)

In the case of Chester v Afshar
[2004] UKHL 41) in
comparison to Bolton v. Stone
[1951] AC 850, [1951] 1 All ER 1078 not all reasonable precaution was
taken with Afshar in giving all information to the patient and ensuring the
patient was aware of all risks involved (Thomas, 2009). The principal issues of autonomy, confidentiality, justice, beneficence,
and non-maleficence are significant factors that a
doctor should be mindful and considerate off when making decisions every day (Thomas, 2009). Although it
could not be proven entirely that the lack of information was the cause for
further discomfort, it can be recognised that “but for” the lack of information
Chester may not have continued with surgery. Conversely the “but for” test does
not provide a complete or exclusive test of causation in the law of tort (Stapleton, 2015). On these facts the
judge found that the claimant had established a causal link between the breach
and the injury she had sustained and held that the defendant was liable in
damages (Parliament, 2003).

Causation
of injury is the most difficult principle to prove under the principles of
negligence (Alvarez, 2012).  In proving
causation, it is not enough to show that the defendant’s conduct caused the
injury to happen, it is generally the person harmed that must prove that the
standard of care fell below what is expected of what a reasonably competent
person would give (Voyiakis, 2018). Considering this part of negligence,
the other elements need to be fulfilled so Firstly it needs to be established
what effect did it have on the patient (Griffith &
Tengnah, 2017).
So, finding a causal link needs to be obtained (Avery, 2017). When claiming for a
negligent act compensation is sometimes awarded for damages caused (Bryden & Storey, 2011).There is a
three-year window for claiming negligence from the alleged negligence
occurring, or from when aware of a negligent act (Bryden & Storey, 2011). This assists for
minors until they mature and come of age (Bryden & Storey, 2011).

It is well represented in the case law of (Barnett v Chelsea [1968] 2 WLR 422, n.d.) even though the
defendant was in breach of their duty of care, they did not however cause the
injury. Though, in this case it could be asked could the patient have suffered
due to the breach in care also considering possible phycological trauma to the
family. However, this was a civil action, had it been determined thatChelsea was the cause of death then
this would have become a gross negligence hearing as with the case of R v
Adomako [1995]. Gross negligence does not signify an intention to cause harm,
if it was to be intentional this would be classed as murder (Ferner & Mc Dowell, 2006). It needs to be ascertained
that a breach in the standard of care that was given caused harm (Griffith & Tengnah, 2017). The court are aware
that negligence can also induce psychological upset, so as a result of this
there are instances when the court will award damages to the claimant (Avery, 2017). However contrary to
this there is a distinction made for this to happen, this is primary and
secondary victims (Sowersby, 2014). The distinction lays between direct
involvement and those who become distressed upon discovering about negligence
on another person (Sowersby, 2014). This is well noted in the case law of (Alcock and others v Chief Constable of Yorkshire
Police, 1992)
AC31091-2 Likewise, the case of (Jaensch v Coffey [1984] 155 CLR 549,, n.d.) it
was determined that it was more than reasonable foreseeability, proximity was
also relevant, doctrine was extended beyond those who perceive with their eyes (Vandhana &
Dharshini, 2018).
So, does this warrant a relationship between psychiatric illness and careless conduct
(Raz, 2010). However, in this
case are there ways to have been more aware and demonstrated more empathy, and
did they practice non- maleficence, is this just behaviour. Harm must be proven by an act of
negligence or omission (Dowie, 2017).It
is important to understand that carelessness is not classified as negligence
these acts are a lack of being unmindful, forgetful and inconsiderate (Raz, 2010). In spite of the
elements required to prove negligence, there is the case of “Res Ipsa loquitur”, this is the principle that incidents
can occur where it is appropriate to imply a negligent act (Brenner & Bal, 2015) This is where an act
“speaks for itself” (Brenner & Bal, 2015). This must meet
three conditions to establish a negligent act, as in the case of Cassidy
v Ministry of health [1951].

Conclusion

So, what does this mean to nursing
practice, a nurse is always duty bound by the NMC code of conduct to adhere to
being candour. It is established that it is unethical in medical practice to deliver
substandard care. It is important to understand that actions should be based on
the right intentions. A nurse should understand their principles of duty and
recognise their obligations and the rights of others. Recommendations for
nursing practice would be to always develop and follow through with a good
nursing care plan and remain up to date on the organisations policies and
procedures. It is important to recognise scope for practice and standards
within a work place, and always identify and know their limitations and always
ask for clarification when not fully understanding a task.

References

• Abraham, T., 2017.
  
  A Short History of the Bolam Test- A Key Stone of Medical Negligence Law for 60 Years.
  
  [Online] Available at: https://www.gponline.com/short-history-bolam-test-keystone-medical-negligence-law-60-years/article/1441675 [Accessed 17th Novemeber 2018].
• 
  Alcock and others v Chief Constable of Yorkshire Police
  
  (1992).
• Alvarez, M., 2012. Review: Action, Ethics, and Responsibilty & Causing Human Actions: New Perspectives on the Causal Theory of Action.
  
  Oxford Journals,
  
  72(One), pp. 190-193.
• Avery, G., 2017.
  
  Law and Ethics In Nursing and Healthcare.
  
  2nd ed. London: Sage.
• 
  Barnett v Chelsea [1968] 2 WLR 422
  
  (n.d.).
• Beauchamp, T. L. & Childress, J. F., 2013.
  
  Principles of Biomedical Ethics.
  
  5th ed. Oxford: Oxford University Press.
• Beever, A., 2007.
  
  Rediscovering the Law of Negligence.
  
  First ed. Oxford: Hart Publishing.
• 
  Bolton v Stone AC 850,
  
  (1951).
• Bond, P. & Paniagua, H., 2009. Understanding the Law and Accountability.
  
  Practice Nursing,
  
  20(8), pp. 406-408.
• Brenner, L. H. & Bal, B. S., 2015. Medicolegal Sidebar: The Law and Social Values: Res Ipsa Loquitur.
  
  Clinical Orthopaedics and Related Research,
  
  473(1), pp. 23-26.
• Bryden, D. & Storey, I., 2011. Duty of Care and Medical Negligence.
  
  British Journal of Anaesthsia,
  
  11(4), pp. 124-127.
• Bryden, D. & Storey, I., 2011. Duty of Care and Medical Neligence.
  
  Continuing Education in Anaesthesia Critical Care & Pain,
  
  11(4).
• 
  Caparo Industries Plc v Dickman [1990] UKHL 2
  
  (1990).
• 
  Cassidy v Ministry of health .
  
  (1951).
• Chapman, M., 2009.
  
  The Snail and The Ginger Beer A Singular Case of Donoghue v Stevenson.
  
  First ed. London: Wildy Simmonds & Hill Publishing.
• 
  Chester v Afshar [2004] UKHL 41)
  
  (2004).
• de Villiers, M., 2015. Forseeability Decoded.
  
  Minnesota Journal of Law, Science & Technology,
  
  16(1).
• Dimond, B., 2015.
  
  Legal Aspects of Nursing.
  
  7th ed. Harlow: Pearson.
• 
  Donoghue v Stevenson [1932] UKHL 100,
  
  (1932).
• Dowie, I., 2017. Legal, ethical and Professional Aspects of Duty of Care for Nurses.
  
  Nursing Standard,
  
  32(16-19), pp. 47-52.
• Dowie, I., 2017. Legal, Ethical and Professional Aspects of Duty of Care for Nurses.
  
  Nursing Standard,
  
  16-19(32), pp. 47-52.
• Ferner, R. E. & Mc Dowell, S. E., 2006. ” Doctors Charged With Manslaughter in the Coarse of Medical Practice”.
  
  Journal of The Royal society of Medicine,
  
  Volume 99, pp. 309-14.
• Gerard , P., 2008. What Happens When a Breach of The Duty of Care Results in Death?.
  
  Guidelines in Practice.
  
• Griffith, R. & Tengnah, C., 2017.
  
  Law and Professional Issues in Nursing.
  
  Fourth ed. London: Sage Publications.
• Hartshorne, J., 2007.
  
  Confusion, Contradiction and Chaos Within the Hous of Lords Post Caparo v Dickman.
  
  [Online] Available at: https://lra.le.ac.uk/bitstream/2381/27596/4/J_Hartshorne_article_.pdf [Accessed 09 November 2018].
• Human Rights Act , 1998.
  
  Gov.uk.
  
  [Online] Available at: https://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/7 [Accessed 09 November 2018].
• Iwan, D., 2017. Legal, Ethical and Professional Aspects of Duty of Care for Nurses.
  
  Nursing Standard,
  
  32(16), pp. 47-52.
• 
  Jaensch v Coffey (1984) 155 CLR 549,
  
  (1984).
• 
  Jaensch v Coffey [1984] 155 CLR 549,
  
  (n.d.).
• Kline, R. & Khan, S., 2013. Duty of Care of Healthcare Professionals.
  
  Public World.
  
• Mandal, J. H., Ponnambath, D. K. & Parija, S. C., 2016. Utilitarian and Deontological Ethics In Medicine.
  
  Tropical Parasitology,
  
  6(1), pp. 5-7.
• NHS Education for Scotland, 2014.
  
  Professionalism and Professional Accountability in Clinical Skills Practice.
  
  [Online] Available at: http://www.csmen.scot.nhs.uk/media/1318/professionalism_and_professional_accountability.pdf

  [Accessed 18th Novemeber 2018].

• Nice, 2011.
  
  Making Difficult Choices: Ethical Commissioning.
  
  [Online] Available at: https://www.evidence.nhs.uk/search?q=ethical+principles+in+healthcare+research [Accessed 30th October 2018].
• Nursing and Midwifery Council, 2015.
  
  The Code.
  
  [Online] Available at: https://www.nmc.org.uk/globalassets/sitedocuments/nmc-publications/nmc-code.pdf
• Owen, D. G., 2007. The Five Elements of Negligence.
  
  Hofstra Law Review,
  
  35(4), pp. 2-9.
• Page, K., 2012. The Four Principles: Can They Be Measured and Do They Predict Ethical Decision Making.
  
  BMC Medical Ethics,
  
  13(1), p. 1.
• Parliament, 2003.
  
  Opinions of the Appeal for Judgement In the Cause.
  
  [Online] Available at: https://publications.parliament.uk/pa/ld200304/ldjudgmt/jd041014/cheste.pdf [Accessed 11 Novemeber 2018].
• 
  R v Adomako
  
  (1995).
• Raz, J., 2010. Resposability and the Negligence Standard.
  
  Oxford Journal of Legal Studies,
  
  30(1), pp. 1-18.
• Sowersby, R., 2014.
  
  Psychiatric damage: Primary and Secondary Victims.
  
  [Online] Available at: http://www.guildhallchambers.co.uk/pdfs/guildhall-1794.pdf [Accessed 17th Novemeber 2018].
• Stapleton, J., 2015. An “Extended But-For Test For” The Casual Relation In The Law Of Obligations.
  
  Oxford Journal of Leagal Studies,
  
  Volume 35.
• Stauch, M., Wheat, K. & Tingle, J., 2003.
  
  Medical Law.
  
  Second ed. London: Cavendish .
• Tan, D., 2010. The Salient Features of Proximity: Examining the Spandeck Formulation for Establishing a Duty of Care’.
  
  Singapore Journal of Legal Studies,
  
  pp. 459-83.
• Thomas, J., 2009. Ethical and Legal Issues in Medical Practice.
  
  US National Library of Medicine,
  
  25(3), pp. 335-336.
• Thomson Reuters, 2016.
  
  Principles and Progress.
  
  [Online] Available at: http://sites.thomsonreuters.com.au/journals/files/2018/07/Justice_Peter_Applegarth_2016-90-ALJ-711.pdf [Accessed 07 Novemeber 2018].
• Vandhana, R. & Dharshini, P., 2018. A Test of Proximity and Forseeabilty With Respect To The Tort Of Negligence: An International Perspective.
  
  International Journal of Pure and Applied Mathematics,
  
  120(5), pp. 453-462.
• Voyiakis, E., 2018. Causaton and Oppertunity In Tort.
  
  Oxford Journal of Legal Studies,
  
  38(1), pp. 26-47.
• 
  Wilsher v Essex Area Health Authority [1988] AC 1074,
  
  (1988).
• Wilson, J., 2011. The Delight of Everyone.
  
  New Law Journal,
  
  Issue 7482.
• Young, A., 2009. Review:The Legal Duty of Care for Nurses and Other Healthcare Professonals.
  
  Journal of Clinical Nursing,
  
  Volume 18, pp. 3071-3078.