The yardstick of safe practice

In
the 9th annual Ruth Alston lecture, organised by the Association of
Occupational Health Nurse Practitioners (AOHNP), barrister Diana Kloss examines
the legal liability of the occupational health professional

I
am not, and do not purport to be, a health professional. However, for many
years I have been interested and involved in healthcare law, especially in the
field of OH. Ruth Alston, whom I knew, was particularly interested in the role
of OH in business.

I
have been asked to explore the issue of how far the potential legal liability
of the occupational health nurse (OHN) has both positive and negative economic
effects on the business.

It
is well established that the liability of the employer, both under the criminal
law of health and safety and the civil law of compensation, has important
economic effects.

Rises
in premiums for employer liability insurance and the proposal that the cost of
NHS treatment for staff injured at work should be borne by the negligent
employer are some of the recent actual and potential examples of the financial
burdens on business of legal liability. 

Of
course, the costs of preventative measures are also expensive items on the
balance sheet. It was for this reason that health and safety at work was within
the competence of the European Union, and the European Coal and Steel Community
before it, from the very beginning. It was recognised that the protection of
workers was a costly matter, and that companies throughout Europe should operate
on a level playing field.

In
this lecture, I am concerned not with the liability of the employer, but that
of the nurse. Their potential liabilities arise in the following key areas:


Criminal law


Civil law of negligence


Employment laws, particularly the Disability Discrimination Act (DDA)


Professional liability, as policed by the Nursing and Midwifery Council (NMC)


The duty to the employer under the contract of employment.

Duties
under criminal law

These
are principally imposed by the Health and Safety at Work Act and regulations
made there under. Most of the legal obligations are imposed on the employer,
but there are duties imposed on employees as well.

Section
7, which obliges employees to co-operate with the employer in caring for their
own health and safety and that of others, is one example, as is section 36:
“Where the commission by any person of an offence under any of the relevant
statutory provisions is due to the act or default of some other person, that
other person shall be guilty of an offence, and a person may be charged with,
and convicted of, the offence by virtue of this subsection, whether or not
proceedings are taken against the first-mentioned person”.

In
Health and Safety Executive v Lockwood, Stephen Lockwood was an occupational
hygienist working as a consultant in a woodworking factory.1 An inspector
discovered that the levels of airborne dust were over the legal limits, thus
putting the employer on the wrong side of the law (the COSHH Regulations).

The
fault lay with the hygienist, who had failed to comply with the standards and
procedures recommended by his profession. Following the case, he undertook
further training modules.

The
employer was issued with an improvement notice, but was not prosecuted. A
prosecution was brought before the Stafford magistrates against the hygienist,
who was found not to be competent as required by the management regulations. He
was fined £1,000 and ordered to pay £2,000 in costs.

I
have been informed by a senior doctor at the Employment Medical Advisory
Service that similar prosecutions have been considered against OH
professionals, though none have yet reached the courts.

What
amounts to competence? There are several guides as to the need for competence
and how it may be obtained.2 The practitioner must have appropriate
qualifications, an understanding of current best practice, an awareness of the
limits of their knowledge and experience, and must stay up-to-date. The more
complicated the task, the higher the level of knowledge and experience
required.

Outside
the law of health and safety, general criminal law will also impact on the
practitioner. For example, the law of manslaughter has been used by the Crown
Prosecution Service on a number of occasions in recent years to prosecute
doctors and nurses guilty of gross negligence. Nurses must also, of course,
take care to comply with laws relating to dangerous and controlled drugs.

It
is important to note there can be no insurance against potential criminal
liability, though insurance against the legal costs of defending a criminal
charge is permitted.

Duties
under the civil law

The
tort of negligence imposes a duty of care on all health professionals to take
reasonable care. It is more common for health professionals to be sued in the
civil courts than to be prosecuted. Therefore, I strongly advise any health
professional to take out legal liability insurance and not to rely on the
employer, whose interests may conflict with those of the nurse. 

Membership
of the Royal College of Nursing (RCN) and other trade unions includes insurance
as a benefit of membership. In 2003, insurance through the Medical Defence
Union for AOHNP members was £135 for £10m cover. This compares very favourably
with the costs of employer liability insurance. Up to now, I know of no case
where an OHN has been sued, but there is always a first time.

The
employer is only legally (vicariously) liable for a nurse if they are directly
employed. In theory, the employer made liable for the negligence of a nurse
could call upon the negligent nurse to reimburse them.

Employment
laws, such as the Disability Discrimination Act (DDA) 1995, also impose duties
on health professionals.  Section 57 of
the DDA states: “A person who knowingly aids another person to do an unlawful
act is to be treated as himself doing the same kind of unlawful act… An
employee or agent… shall be taken to have aided the employer or principal to do
the act”.

In
London Borough of Hammersmith and Fulham v Farnsworth, a job applicant sued
both the employer and the self-employed occupational physician for unlawfully
discriminating against her by turning her down for a job as a social worker.3

She
had a history of depression that, in the physician’s view, made it likely that
she would have a sickness absence that was longer than average.

The
tribunal held that both were liable because there had been insufficient
consideration of the fact that Farnsworth had recovered from her depression and
had held down a job for a reasonable period before applying to the council.

On
appeal, the court exonerated the doctor because the only route whereby she
could be held liable was section 57, and the tribunal had not considered that
section. Had the case been properly argued, the doctor might have been required
to pay damages in addition to the employer’s liability.

Duties
to the profession

A
serious breach of the nurse’s professional Code of Conduct might lead to the
loss of a career as well as a job.4

The
Professional Conduct Committee has the power to strike a nurse off the register
for breaching the code. In my experience, nurses are more fearful of this
sanction than any other.

A
recent case was that of Jose Deogee, an OH nurse in Scotland, who was struck
off for purchasing prescribed drugs without authorisation. At the time, a spokesperson
for the NMC said it was very unusual for an OHN to appear before the
Professional Conduct Committee.

Duties
to the employer 

If
the nurse is employed under a contract of employment, they are an employee. If
they work as a self-employed consultant, they have a contract with the employer
to provide a reasonably efficient service, but not a contract of employment.

Serious
misconduct or incompetence may lead to a fair dismissal of an employee, but the
duty to the employer is not absolute. The nurse is entitled to refuse to break
the law or their Code of Ethics, since their necessary compliance with these
will be an implied term in their contract.

I
have received several e-mails from OHNs who are being subjected to pressure,
even threat of the sack, by personnel departments who are demanding access to
confidential records without the consent of the worker in question.

It
is crystal clear that the nurse has a legal and ethical duty to preserve the
worker’s confidence. Where the employer cannot obtain consent, it will have to
obtain a court order, except in exceptional cases where the interests of others
override consent, such as where the worker is endangering others.

Is
the nurse’s fear of legal action damaging to the effectiveness and costs of an
OH service, or is it a valuable deterrent to poor practice? Does it lead to
defensive medicine, such as unnecessary tests or x-rays?


I am not aware of any research on this issue in OH – perhaps it should be
undertaken. But there is research into the practice of defensive medicine in
other healthcare settings.

Defensive
medicine was defined by Lord Pitt in the House of Lords, on 10 November 1987,
as follows: “If doctors are to face these awards of severe damages they have to
make sure of their defence. You are always better off in the witness box if you
can say that you have done all the tests that are considered necessary… That
means that one is wasting resources”.

It
has been alleged that, for example, the rise in the number of babies born by
Caesarean section is due to the fear of litigation against obstetricians, but
the evidence is that convenience and the mother’s fear of a natural birth are
more likely to be the cause.5

In
any event, health professionals are judged by the standard of a reasonable
practitioner (a system of peer review), so that reductions in tests and
procedures need not give rise to legal liability if the changes are discussed
within the profession and receive the support of a reasonable body of
practitioners.

The
call for ‘evidence-based medicine’ should be heard by OHNs along with their
colleagues in other specialties. It is important in my view for the profession
to agree on standards as far as possible, and establish a recognised ‘best
practice’. It can only be for the benefit of both employer and workers that the
nurse feels constrained by the fear of legal liability to achieve the standards
set by the profession.

It
has been suggested to me that unethical OH consultants occasionally lead
employers to believe that tests are legally required when that is not the case.
If this is true, it might constitute an actionable or even criminal
misrepresentation, and a potential breach of the ethical rules of the
profession.

Does
the fear of legal proceedings restrict OH professionals in what they reveal to
the employer, thus causing economic damage to the business?


Most of the enquiries I receive from OHNs concern the duty of
confidentiality, and there is no doubt that many employers see OH personnel as
being unreasonably secretive.

Here,
there is a conflict between the interests of the employer and of the worker.
The ethical duties of health professionals primarily protect the worker rather
than the employer, but this is necessary to ensure that staff are willing to
confide in them. Without this trust, no health professional can do a good
job. 

However,
employers see OH records as their property and are frustrated when they are
denied access. I have been told that some employers wish to classify nurses as
OH advisers to try to avoid professional ethics, but I need hardly say that
this must be strongly resisted.

The
recent publication by the Royal College of Nursing of a Code of Confidentiality
for OHNs will give them some support against a predatory employer.6

I
would argue that a good OH service is of economic benefit to the employer in
helping to prevent work-related ill-health, advising on the rehabilitation of
workers who have become disabled and assisting in the reduction of sickness
absence. Confidentiality is an essential concomitant of such a service.

Does
the fear of legal proceedings limit the practice of OHNs because they are
unhappy about assuming a more responsible role, or because employers or doctors
are unhappy about taking on more responsibility, thus making the OH service
less effective?


Here, the NMC and the RCN play a central role in encouraging and supporting
nurses to undertake tasks for which they are competent.7

One
topic often debated is whether a nurse is competent to make a diagnosis,
regarded in the past as the prerogative of the medical profession.

It
is proposed in the new general practitioner contract which is to be introduced
in April 2004, that GPs should no longer have any legal obligation to certify
sickness absence after seven days.8

It
is envisaged that OH departments, among others, will take over this function.
It is likely that OHNs will sign sicknotes. Will they give a diagnosis of the
reason for absence, or will they merely state whether the worker is fit or
unfit to do the job? Clinical details cannot be given without consent. Since OH
has no clinical function, will it be necessary to inform the GP of the giving
of the sicknote? Again, this cannot be done without consent.

I
am aware that I have raised more questions than I have answered, but I hope I
have stimulated debate among the profession. The answer to the question posed
in the lecture’s title appears to be that legal liability is a deterrent to
poor practice.

And
although human resources professionals may not always agree, if it sets
parameters within which the nurse should operate, then this is for the benefit
of both the employer and the employee in the long-term.

References

1.Piney,
Exposure assessment and control (2002) 95 Occupational Health Review 189

2.
Management of Health and Safety at Work Regulations ACOP and Guidance (1999),
paragraphs 51 and 52; HSE (1998) Outline map on competence training and
certification; HSE (2000) guidance for employers on how to get advice on health
and safety

3.
[2000] IRLR 691

4.
Code of Professional Conduct – Nursing and Midwifery Council (2002) London

5.
Medical Negligence: Competence and Accountability – Ham, Dingwall, Fenn, Harris
(1988), King’s Fund, London

6.
Confidentiality – RCN Guide for occupational health nurses (2003), RCN, www.rcn.org.uk

7.
Qualified to practise? – Robson, (2001) 94 Occupational Health Review 16

8.GMS
Contract 2003; Green Paper, Pathways to Work, Stationery Office

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