Skip to main content Accessibility help

We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.

Close cookie message
×
Hostname: page-component-78c5997874-g7gxr Total loading time: 0 Render date: 2024-11-19T01:59:46.517Z Has data issue: false hasContentIssue false

Chapter 4 - Operating Department Practice and the Law

Published online by Cambridge University Press:  18 August 2022

By
Edmund Horowicz  and
Amy Williams
Edited by
Daniel Rodger ,
Kevin Henshaw ,
Paul Rawling  and
Scott Miller
Daniel Rodger
Affiliation:
Senior Lecturer in Perioperative Practice, London South Bank University
Kevin Henshaw
Affiliation:
Associate Head of Allied Health Professions, Edge Hill University, Ormskirk
Paul Rawling
Affiliation:
Senior Lecturer in Perioperative Practice, Edge Hill University, Ormskirk
Scott Miller
Affiliation:
Consultant Anaesthetist, St Helens and Knowsley Hospitals NHS Trust
Get access

Summary

The provision and practice of healthcare is subject to a broad legal framework of accountability. Healthcare professionals must develop a sound understanding of their legal responsibilities and the underpinning ethical, professional and legal reasons for them. Ultimately, healthcare law is about people, their bodies, and those entrusted to care for them. Therefore, the aim of this chapter is to rationalise and offer insight into the link between legal accountability and quality of patient care. This chapter has been written to support all perioperative practitioners in developing their legal knowledge in the context of the operating theatre.

Keywords

AccountabilityConsentCapacityNegligenceConfidentialityEquality and Non-Discriminatory Practice
Type
Chapter
Information
Fundamentals of Operating Department Practice , pp. 28 - 48
Publisher: Cambridge University Press
Print publication year: 2022

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Slapper, G. and Kelly., D. The English Legal System, 18th ed. London: Routledge, 2017.Google Scholar
Mental Capacity Act 2005. Available from: www.legislation.gov.uk/ukpga/2005/9/contents.Google Scholar
The Mental Health Act 1993. Available from: www.legislation.gov.uk/ukpga/1983/20/contents.Google Scholar
Children Act 1989. Available from: www.legislation.gov.uk/ukpga/1989/41/section/1.Google Scholar
The Controlled Drugs (Supervision of Management and Use) Regulations 2013 (created by the Secretary of State for Health under powers conferred by the Health Act 2006). Available from: www.legislation.gov.uk/uksi/2013/373/contents/made.Google Scholar
The Nursing and Midwifery Order 2001. Available from: www.legislation.gov.uk/uksi/2002/253/contents/made.Google Scholar
European Union (Withdrawal) Act 2018. Available from: www.legislation.gov.uk/ukpga/2018/16/section/3/enacted.Google Scholar
Human Rights Act 1998. Available from: www.legislation.gov.uk/ukpga/1998/42/contents.Google Scholar
Pattinson., S. D. Medical Law and Ethics, 6th ed. London: Sweet & Maxwell, 2020.Google Scholar
Pretty v. United Kingdom no. 2346/02 [2002] ECHR 423 (29 April 2002).Google Scholar
Campbell v. Mirror Group Newspapers Ltd [2004] UKHL 22.Google Scholar
Glass v. United Kingdom [2004] 1 FCR 553.Google Scholar
Evans v. United Kingdom [2007] ECHR 264.Google Scholar
Nursing and Midwifery Council. The Code. : professional standards of practice and behaviour for nurses, midwives and nursing associates. Available from: www.nmc.org.uk/standards/code/.Google Scholar
Health and Care Professions Council. Standards of conduct, performance and ethics. Available from: www.hcpc-uk.org/standards/standards-of-conduct-performance-and-ethics/.Google Scholar
Equality Act 2010. Available from: www.legislation.gov.uk/ukpga/2010/15/contents.Google Scholar
Government Equalities Office and Equality and Human Rights Commission. Equality Act 2010 guidance. Available from: www.gov.uk/guidance/equality-act-2010-guidance#public-sector-equality-duty.Google Scholar
Newton, J. N., Briggs, A. D. M., C. J. L. Murray, et al. Changes in health in England, with analysis by English regions and areas of deprivation, 1990–2013: a systematic analysis for the Global Burden of Disease Study 2013. The Lancet 2015; 386: 2257–2274.Google Scholar
Health and Social Care Act 2012. Available from: www.legislation.gov.uk/ukpga/2012/7/contents/enacted.Google Scholar
Department of Health. Responsibility and Accountability: Moving on from New Ways of Working to a Creative, Capable Workforce: Best Practice Guidance. London: HMSO, 2010.Google Scholar
Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118.Google Scholar
Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449.Google Scholar
Dearden, L.. Ian Paterson: High Court approves £37 m compensation for 750 victims of jailed breast surgeon. Independent, September 27, 2017. Available from: www.independent.co.uk/news/uk/home-news/ian-paterson-victims-compensation-breast-surgeon-mutilate-wounding-patients-high-court-nhs-a7970666.html.Google Scholar
James., G. Report of the independent inquiry into the issues raised by Paterson. Available from: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/863211/issues-raised-by-paterson-independent-inquiry-report-web-accessible.pdf.Google Scholar
Herring., J. Medical Law and Ethics, 8th ed. Oxford: Oxford University Press, 2020.Google Scholar
NHS Resolution. Report and accounts 2018/2019. Available from: https://resolution.nhs.uk/wp-content/uploads/2019/08/NHS-Resolution-Annual-Report-2018-19.pdf.Google Scholar
Slawson, N.. NHS compensation pay-outs ‘unsustainable’, say health leaders. Guardian, February 2, 2018. Available from: www.theguardian.com/society/2018/feb/02/nhs-compensation-payouts-unsustainable-say-health-leaders.Google Scholar
NHS Resolution. About NHS Resolution. Available at: https://resolution.nhs.uk/about/.Google Scholar
Donoghue v. Stevenson [1932] UKHL 100.Google Scholar
Caparo Industries PLC v. Dickman [1990] UKHL 2.Google Scholar
West Bromwich Albion Football Club Limited v. El Safty [2005] EWHC 2866.Google Scholar
Mulheron., R. P. Medical Negligence: Non-Patient and Third-Party Claims. Farnham: Ashgate Publishing, 2010.Google Scholar
Health and Care Professions Council. Education standards. Available from: www.hcpc-uk.org/education/resources/education-standards/.Google Scholar
Nursing and Midwifery Council. Standards for education. Available from: www.nmc.org.uk/education/standards-for-education2/.Google Scholar
Health and Care Professions Council. Guidance on conduct and ethics for students. Available from: www.hcpc-uk.org/globalassets/resources/guidance/guidance-on-conduct-and-ethics-for-students.pdf.Google Scholar
Brazier, M. and Miola, J.. Bye-Bye Bolam: a medical litigation revolution? Medical Law Review 2000; 8: 85–114.Google Scholar
Bolitho v. City and Hackney Health Authority [1997] 4 All ER 771.Google Scholar
Wilsher v. Essex Area Health Authority [1986] 3 BMLR 37.Google Scholar
Laurie, G. T., Harmon, S. H. E., and Porter., G. Mason and McCall Smith’s Law and Medical Ethics, 10th ed. Oxford: Oxford University Press, 2016.Google Scholar
Penney and others v. East Kent Health Authority [1999] All ER (D) 1271.Google Scholar
Perioperative Care Collaborative. The perioperative care collaborative position statement: surgical first assistant. Available from: www.afpp.org.uk.Google Scholar
Royal College of Surgeons. Surgical care team guidance framework. Available from: www.rcseng.ac.uk.Google Scholar
Barnett v. Chelsea and Kensington Hospital Management Committee [1968] 2 WLR 422.Google Scholar
R v. Adomako [1995] 1 A.C. 171.Google Scholar
Vaughan, J. Post Bawa-Garba: how do we detoxify the climate of fear? The Bulletin of the Royal College of Surgeons of England 2018; 100: 325.Google Scholar
Dyer, C. Bawa-Garba case has left profession shaken and stirred. British Medical Journal 2018; 360: DOI https://doi.org/10.1136/bmj.k456.Google Scholar
Criminal Justice and Courts Act 2015. Available from: www.legislation.gov.uk/ukpga/2015/2/contentsGoogle Scholar
Francis, R. QC (Chair). Report of the Mid Staffordshire NHS Foundation Trust public inquiry. Available from: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/279124/0947.pdf.Google Scholar
Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Available from: www.legislation.gov.uk/ukdsi/2014/9780111117613/contents.Google Scholar
General Medical Council and the Nursing and Midwifery Council. Openness and honesty when things go wrong: the professional duty of candour. Available from: www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/candour---openness-and-honesty-when-things-go-wrong.Google Scholar
Brazier., M. Patient autonomy and consent to treatment: the role of the law. Legal Studies 1987; 7: 169–179.Google Scholar
O’Brien v. Cunard SS Co. (Mass. 1891) 28 NC266.Google Scholar
Montgomery v. Lanarkshire Health Board [2015] UKSC 11.Google Scholar
Lord Goff of Chieveley in F v. West Berkshire HA [1991] UKHL 1.Google Scholar
Criminal Justice Act 1988. Available from: www.legislation.gov.uk/ukpga/1988/33/contents.Google Scholar
Elliott, C. and Quinn., F. Tort Law. Harlow: Pearson Education, 2013.Google Scholar
Re W (A Minor) (Medical Treatment) [1992] 4 All ER 627.Google Scholar
Chatterton v. Gerson [1981] QB 432, [1981] 1 All ER 257.Google Scholar
General Medical Council. Good medical practice: working with doctors working for patients. Available from: www.gmc-uk.org/-/media/documents/good-medical-practice---english-20200128_pdf-51527435.pdf.Google Scholar
Royal College of Surgeons. Good surgical practice, a guide to good practice: consent. Available from: www.rcseng.ac.uk/standards-and-research/gsp/domain-3/3-5-1-consent/.Google Scholar
Spencer v. Hillingdon NHS Trust [2015] EWHC 1058.Google Scholar
Brazier, M and Cave., E. Medicine, Patients and the Law, 6th ed. Manchester: Manchester University Press, 2016.Google Scholar
Department for Constitutional Affairs. Mental capacity act code of practice. Available from: www.gov.uk/government/publications/mental-capacity-act-code-of-practice.Google Scholar
Family Law Reform Act 1969. Available from: www.legislation.gov.uk/ukpga/1969/46/section/8.Google Scholar
Bartlett, P. and Sandland., R. Mental Health Law: Policy and Practice. Oxford: Oxford University Press, 2014.Google Scholar
L. J. Thorpe in Re A [2000] 1 FLR 549 at 560.Google Scholar
Johnston., C. S. Lack of capacity is not an ‘off switch’ for rights and freedoms: Wye Valley NHS Trust v. Mr B (By His Litigation Friend, the Official Solicitor) 2015 EWCOP 60. Medical Law Review 2017, 25: 662–671.Google Scholar
Cave., E. Determining capacity to make medical treatment decisions: problems implementing the Mental Capacity Act 2005. Statute Law Review 2015; 36: 86–106.Google Scholar
Re J [1993] Fam 15, at 29; [1992] 4 All ER 614 at 625.Google Scholar
Aintree University Hospitals NHS Foundation Trust v. James [2013].Google Scholar
British Medical Association. Guidance for non-therapeutic male circumcision: practical guidance for doctors. Available from: www.bma.org.uk/media/1847/bma-non-therapeutic-male-circumcision-of-children-guidance-2019.pdf.Google Scholar
Earp, B. D. and Darby., R. Circumcision, autonomy and public health. Public Health Ethics 2019; 12: 64-81.Google Scholar
B (A Child: Immunisation) [2018] EWFC 56.Google Scholar
Re P (Medical Treatment: Best Interests) [2003] EWHC 2327 (Fam).Google Scholar
Horowicz., E. Transgender adolescents and genital-alignment surgery: is age restriction justified? Clinical Ethics 2019; 14: 94–103.Google Scholar
Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.C. 112.Google Scholar
United Nations. Convention on the rights of the child. Available from: www.ohchr.org/en/professionalinterest/pages/crc.aspx.Google Scholar
Cave, E. Goodbye Gillick? Identifying and resolving problems with the concept of child competence. Legal Studies 2014; 34: 103–122.Google Scholar
Great Ormand Street Hospital v. Yates and Gard [2017] EWHC 972 (Fam).Google Scholar
Hunter v. Mann [1974] QB 7674.Google Scholar
Lewis v. Secretary of State for Health [2008] EWHC 2196.Google Scholar
W v. Egdell [1990] 1 All ER 835.Google Scholar
Health and Care Professions Council. Guidance on confidentiality. Available from: www.hcpc-uk.org/registration/meeting-our-standards/guidance-on-confidentiality/.Google Scholar
Department of Health. Confidentiality: NHS code of practice. Available from: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/200146/Confidentiality-NHS_Code_of_Practice.pdf.Google Scholar
Female Genital Mutilation Act 2003. Available from:https://www.legislation.gov.uk/ukpga/2003/31/contents.Google Scholar
Health Protection (Notification) Regulations (SI 2010/659), as amended. Available from: www.legislation.gov.uk/uksi/2010/659/regulation/2/made.Google Scholar
Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). Available from: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679&from=EN.Google Scholar
R (on the application of Axon) v. Secretary of State for Health [2006] 2 WLR 1130.Google Scholar
Department of Health. Confidentiality: NHS code of practice supplementary guidance – public interest disclosures. Available from: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/216476/dh_122031.pdf;Google Scholar
Cave, E. Disclosure of confidential information to protect the patient: the role of legal capacity in the evolution of professional guidance. Journal of Medical Law and Ethics 2015; 3: DOI 10.7590/221354015X14319325749982.Google Scholar
Data Protection Act 2018. Available from: www.legislation.gov.uk/ukpga/2018/12/contents/enacted.Google Scholar
Information Commissioner’s Office. Guide to data protection. Available from: https://ico.org.uk/for-organisations/guide-to-data-protection/.Google Scholar
Information Commissioners Office. Personal data breaches. [Available from: https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/personal-data-breaches/.Google Scholar
General Medical Council. Confidentiality: good practice in handling patient information. Available from: www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/confidentiality.Google Scholar
Department of Health. The Caldicott Committee Report on the review of patient-identifiable information. Available from: https://webarchive.nationalarchives.gov.uk/20130124064947/http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4068404.pdf.Google Scholar

Save book to Kindle

To save this book to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×