Nursing – The Law & Giving Advice

Nursing – The Law & Giving Advice

I was asked about giving information to clients that may be controversial or which differs from the facility policies and practices.  This seemed fairly straightforward at the time; nurses have an ethical obligation to advocate for clients and all health practitioners are obliged to ensure they provide sufficient information and give all assistance to ensure the client can make a truly informed decision about whether to accept or refuse treatment.

However when I started researching to get legal decisions that support our professional codes I did note that there could be some risks in just how we personally respond to queries.

The National Health Medical and Research Council guidelines state that all patients or decision-makers should receive and be able to understand the information likely to influence their decision about whether to agree to the relevant public sector health service or not.

The question I was asked was what might happen if the information sought related to a controversial procedure, one where there are disputes about the value, safety or efficacy of a particular procedure.

Ethically we are obliged to answer questions or give direction for accurate information to answer a client’s queries.  If we are providing a service or treatment we must ensure the client has access to clear and hopefully unbiased information about that treatment.  The seminal case Rogers v Whitaker makes it very clear that informed consent requires full information must be provided and while there may be clients who make it clear they do not want every risk and complication discussed, only their key questions, we need to be ready to address every issue that matters to them.

“The law should recognise that a doctor has a duty to warn a patient of the material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should be reasonable aware that the particular patient, if warned of the risk, would be likely to attach significance to it.” (Rogers v Whitaker [1992] HCA 58).

Fair enough but what if the intervention proposed as a routine practice has been questioned and what if there are differences of opinion between practitioners about the value versus risks of a treatment?  Then the practitioner needs to be careful.  The courts have recognised that negligent and/or misleading advice and opinion can ground liability in negligence and that where the information giver ought to have known that the recipient of the information would rely on that information, there is a duty to take reasonable care that the information is correct.  (L Shaddock & Associates Pty Ltd v Parramatta City Council [1981] 50 CLR 225).

What this means is giving an opinion, voicing your personal beliefs in response to a question that relates to a disputed intervention is really, really dangerous.  I know that is what is being asked of you, the client is looking for clarification and direction but your opinion should not be given.  Instead you can direct the client to credible and scientific resources that address the questions they have.  That is your ethical duty.  They are entitled to help in finding quality information about the treatment they are questioning and to your assistance in finding quality research not media beat ups or opinion pieces scattered around the web.

You are the professional and have the skill and capacity to identify credible and valid resources they can rely upon.  You can also help them understand these resources, translating jargon and aiding their understanding.

Even though she claimed she was following protocols for giving patient information in response to their query has proven disastrous for one American RN.  Amanda Trujillo claimed she advocated for one of her patients, used hospital approved teaching materials, stayed with the scope of practice routinely used at her facility and dictated by the Arizona State Board of Nursing.  It seems she suggested to her patient that they might want to get information on alternative treatments from the surgery proposed by the patient’s physician, and followed through on the patient’s request to have a hospice consultation. Fired and reported to the Arizona State Nursing Board this case became a massive internet cause.  The actual hearing did not have evidence the nurse was as blameless as her web posts would indicate but in relation to our discussion here, it is an alert.

There are lines we need to know exist and overstepping them by voicing our own opinion is not advocacy, it is not patient teaching, and it is not obtaining informed consent.  Our opinion may be worthy and based on fact but point the client to information that is unbiased, evidence based and valid.   If the client is questioning a routine and habitual treatment option establish what are their anxieties, what information they are relying upon that caused these anxieties and seek the best sources of information they should consider.  Then let them make their own decision.

There are some fabulous webinar recordings by Pam Savage regarding Nurses and the Law on the Nurses for Nurses Network. The  Nurses for Nurses Network provides good information and CPD  on an array of nursing topics in a range of easy learning ways including webinars and quizzes on the latest information that Nurses need to know – remember the Nurses for Nurses Network was created by Australian Nurses for Nurses!



Leave a Reply

Your email address will not be published. Required fields are marked *