As nurses work more independently, what rules apply to standards of practice? Who is the expert witness and against whom are standards measured?
It is a well-established principle of law that when activities are delegated to or undertaken by other health professionals, there should be no lowering in the standard of care. The patient is entitled to the reasonable standard of care they would have expected to receive from the original health professional.
The principle was set in a case involving a learner driver, whose driving caused the instructor to be injured. The instructor was entitled to compensation from the learner (reduced for his contributory negligence) for the learner’s negligence in failing to follow the reasonable standard of care of a qualified driver.
Lord Justice Megaw stated that it is preferable that there should be a reasonably certain and reasonably ascertainable standard of care.
It follows therefore that, where nurses become specialists and advanced practitioners, taking over many doctors’ activities, they are expected to provide the reasonable standard of care that the patient could have expected from medical staff who would formerly have carried out those activities.
Where there is a dispute over the standard that should have been followed, expert witnesses – nurses or doctors – from the professions that normally undertake the activity will provide reports on the standard the patient was entitled to expect and how that compares with what took place. The experts would be well-respected and experienced specialists in the area of practice.
The Bolam test of the reasonable standard of practice is still used to determine negligence.
To determine the reasonable standard of care, reference would be made to national guidelines, such as those published by professional bodies and NICE, academic textbooks and employers’ policies and protocols. The standards that applied at the time of the alleged negligence are used, not those at the time of the court case, which may take place many years later.
Bridgit Dimond, MA, LLB, DASA, AHSA, is barrister-at-law and emeritus professor, University of Glamorgan, Pontypridd