It is a principle of employment law that employees should obey the reasonable instructions of employers. This is one of the implied terms in a contract of employment.
Only where it can be argued that the requirements of the employer are unreasonable or that they are outside the basic terms of the contract – for example requiring a staff nurse employed to work in the operating theatre to work on a geriatric ward – could the employee refuse to carry out these instructions.
If the employer required registered nurses to act contrary to the NMC code of conduct, that would be an unreasonable instruction and a registered nurse would be justified in refusing to obey the employer.
The employee could argue that the employer is in fundamental breach of contract in requiring the employee to carry out such an unreasonable request and that as a consequence a constructive dismissal situation has arisen.
Many organisations, besides the registration bodies, issue advice and guidance for healthcare professionals – the Department of Health, NICE, the National Patient Safety Agency and others, as well as professional groups and health and social care charities.
In this situation, the nursing staff consider that the instructions that have been given, possibly in a knee-jerk reaction to a tragic event, are incompatible and conflict with other well-established guidance.
It is essential that they obtain the necessary evidence regarding appropriate standards for preventing suicides that have been provided by the National Patient Safety Agency, the Healthcare Commission, the Mental Health Act Commission and other relevant organisations.
Information should also be obtained about fire precautions and suicide risks, since the removal of fire extinguishers because they may present a suicide risk could lead to a significant safety hazard.
The privacy rights of the patient under article 8 of the European Convention of Human Rights must also be taken into account.
Once all this information has been obtained, the evidence should then be presented to the managers who issued
the initial confusing instructions. It is to be hoped that any reasonable management will accept that the initial instructions should be modified, and that it should therefore be possible to resolve the dilemma without having to resort to legal action.
Ultimately, however, if management is obdurate in insisting that employees obey instructions that contradict established and approved guidance, whistleblowing may be necessary and the provisions of the Public Interest Disclosure Act 1998 would apply.
Bridgit Dimond, MA, LLB, DSA, AHSA, is barrister-at-law and emeritus professor, University of Glamorgan, Pontypridd