Nursing and the legal system

LEARNING OBJECTIVES In this chapter, you will: ➔ Distinguish between the two sources of law in Australia: statutory law and common law ➔ Gain an understanding of the hierarchy of the courts in Australia's legal system ➔ Gain an understanding of the difference between criminal and civil law and how each relates to nursing practice ➔ Gain an understanding of the importance for nurses of gaining knowledge of the law and the legal system The Australian legal system is complex. An illustration of its complexity can be seen in the protracted and controversial case of Dr Jayant Patel, a surgeon who had been working at the Bundaberg Base Hospital in Queensland. In 2010, following a commission of inquiry by the Queensland Government, and after being extradited from the United States, an action of criminal negligence was brought against Dr Patel under the Criminal Code 1899 (Qld). Although the legal action was initially successful, and Patel was found guilty on three counts of manslaughter and one count of grievous bodily harm, the case for the prosecution was not straightforward. Section 288 of the Criminal Code 1899 states that: ‘It is the duty of every person who … undertakes to administer surgical … treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act.’ Patel was found to have operated with appropriate skill and care. Jurors, therefore, were required to find that Patel's decision to operate showed ‘such a great falling short of the standard to have been expected of a surgeon, and showing such serious disregard for the patient's welfare … was so thoroughly reprehensible, involving such grave moral guilt, that it should be treated as a crime deserving of punishment’ (R v Patel [2010] QSC 233 [69]). Patel's convictions depended upon an interpretation of section 288 by Justice Byrne: Take a surgeon who performs a minor surgical procedure with consent. During the operation, in circumstances bespeaking criminal negligence, the surgeon lets the knife slip, wounding the patient. The surgeon will have breached the s 288 duty and be guilty of unlawful wounding.