This document provides an introduction to legal aspects of nursing, focusing on duty of care and negligence. It discusses several key points: - Most English law is in the form of statutes passed by Parliament, while common law consists of legal precedents set by past court rulings. - Nurses have both a professional and legal obligation under the NMC code to practice lawfully. Failing to follow laws or evidence-based guidelines could constitute negligence. - For a claimant to prove negligence, they must show the nurse owed them a duty of care, breached that duty, and caused harm or loss. Duty of care and standards of care are determined through various legal precedents and rulings like Bolam and

1. Introduction to Legal Aspects of Nursing
Duty of Care
‘The Law is the Law’ W.H. Auden.
Tim Goodchild

2. What is law?

3. Most English law is in the form of statute – starts life
as a bill/proposal for a statute & then debated &
approved in both Houses & after Royal Assent it
becomes law!
e.g.
o The National Health Service Act 1946 …
o NHS Act 1977 …
o Health and Social Care Act 2001 …
o Health and Social Care Act 2012
And so on …

4. Common Law (legal precedents)
The rules of common law predate statute.
Common law is essentially rules or legal principles laid
out by judges in deciding cases that came before
them.
e.g. Tort, in particular negligence.
R v. Central Birmingham Health Authority ex parte Walker (1987);
McFarlane v. Tayside Health Board [2000]2 AC 59

5. How is nursing practice
and law ‘connected’?

6. The law as ‘evidence’
• There are laws governing specific areas of health care practice
e.g. Manual Handling Regulations (1993), The Medicines Act
(1968), The Mental Capacity Act (2005)
• So doing the ‘right thing’ for patients might mean following
the details of these laws.
• You can justify or explain your actions by saying that you are
following the law.
• The law is the ‘evidence’

7. The law as ‘evidence’
‘’You must always act lawfully, whether those laws
relate to your professional practice or personal life’’
(NMC Code, 2009)
‘’You must adhere to the laws of the country in which
you are practising’’
(NMC Code, 2009)
There is thus a professional obligation to act lawfully at
all times.

8. Practice & ‘breaking the law’
If nurses do not use up to date information, research,
evidence to support their practice then they may be
carrying out substandard or dangerous practice.
Substandard or dangerous practice could have legal
implications – for example the nurse could be sued by
the patient for the damages caused by negligence.

9. Law of Negligence
In order to succeed the claimant will need to prove
three things…
1) The professional who is being sued owed the
claimant a duty of care.
2) The professional breached the duty of care.
3) The breach of the duty of care caused the claimant
loss.

10. Duty of Care
Who do you owe a duty of care to?
Donoghue vs Stephenson (1932) UKHL 100
“You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure
your neighbour. Who, then, in law, is my neighbour? The
answer seems to be - persons who are so closely and
directly affected by my act that I ought reasonably to
have them in contemplation as being so affected when I
am directing my mind to the acts or omissions that are
called in question.”

11. Duty of Care
Caparo Industries plc vs Dickman [1990] UKHL 2
1. The harm which occurred must be a reasonable foreseeable
result of the defendant's conduct;
2. A sufficient relationship of proximity or neighbourhood exists
between the alleged wrongdoer and the person who has
suffered damage;
3. It is fair, just and reasonable to impose liability.
What if a Trust discharged a patient who was a risk to the
public and they assaulted someone?

12. Goodwill v BPAS (1996)
Dr did not hold a duty of care, giving contraceptive
advice to a patient, towards people the patient may
have sex with in the future… BUT may hold duty of care
to the patients spouse. Difference is that if Dr knows a
patient is married, then they must contemplate the
spouse.
West Bromwich Albion v El-Safty (2006)
Held that a Surgeon treating a football player did not
hold duty of care to his club.

13. Breach of the duty
Having established the defendant owed a Duty of Care,
the next question is whether that duty was breached?
How do you judge whether someone has acted as a
reasonable ‘person’ would?
• Bolam v Friern Hospital Management Committee
[1957] 1 WLR 583
Despite being controversial, there is no doubt this
represents the law, as tested by several other cases.

14. Bolam develops…..
• Whitehouse v Jordan [1981] 1 All ER 267
• Maynard v West Midlands Regional
Health Authority [1985] 1 All ER 635
• Sidaway v Bethlem Royal Hospital
Governors [1985] AC 87

15. Bolitho v City and Hackney Health Authority
[1997] 4 All ER 771
“the court has to be satisfied that the exponents of the body
of opinion relied on can demonstrate that such opinion has
a logical basis. In particular, in cases involving, as they so
often do, the weighing up of risks against benefits, the
judge before accepting a body of opinion as being
reasonable, responsible or respectable will need to be
satisfied that, informing their views, the experts have
directed their minds to the questions to comparative risks
and benefits and have reached a defensible conclusion on
the matter”.
Lord Brown-Wilkinson

16. Who dictates your (student)
standard of care?
- Who dictates “your” standard?
- Is the situation a factor?
- Can lack of resources be a defence?
- Can a team be negligent?

17. Causation
Simply showing a health care professional has
been negligent does not mean a claimant has
won their case.
The ‘but for’ test.
Barnett v Chelsea & Kensington HMC
– That one was easy! Most more difficult!
– Does inaction or action cause the issue…?

18. Damages
So, if you can prove that ….
1) The professional who is being sued owed the
claimant a duty of care.
2) The professional breached the duty of care.
3) The breach of the duty of care caused the
claimant loss.
How much should we give in damages?