Rosemary Bryant, RN, BA, Grad Dip Health Admin, FRCNA
ISBN Number: 0-86396-662-4
The University of Adelaide
Department of Clinical Nursing
1999
Joan Durdin Oration
Paper Series Number 5
The Joan Durdin Oration is an annual event initiated and sponsored by the Department of Clinical Nursing at The University of Adelaide. It is intended to serve as an occasion of celebration of nursing's past achievements and to focus on visioning the future. Orators are distinguished nurses who have made a major contribution to the development of Australia's vibrant nursing profession.
As well as focusing on nursing as a profession which is central to effective health service delivery, the Oration honours the contribution of Joan Durdin, a South Australian who has played a major role in uncovering the historical legacy of nursing and in the advancement of nursing through the development of advanced education in the higher education sector.
The Joan Durdin Oration brings together all nurses of South Australia as well as leaders from all fields associated with the health and well being of South Australians to celebrate nursing's past achievements and anticipate the further evolution of nursing
Ms Rosemary Bryant has been a registered nurse for close to thirty years. Her formal qualifications include Graduate Diploma in Health Administration, Diploma In Nursing Administration, Intensive Care Nursing Certificate and Bachelor of Arts Degree. She is a Fellow of the Royal College of Nursing, Australia.
After training at Royal Alexandra Hospital in Brisbane she traveled and worked in the United States and the United Kingdom. Throughout the 1970s she worked at Royal Adelaide Hospital in the Coronary Care and Cardio Thoracic Surgical Units. In the late '70s as a Nursing Supervisor she was instrumental in the development of Royal Adelaide Hospital's Nursing Quality Assurance program and in the introduction of the "nursing process" to the hospital. From the early 1980s Rosemary has participated in many state and Commonwealth committees on nursing. She spent 10 years on the South Australian Branch Council of the Australian Nursing Federation and during this period, she was Federal Treasurer of the Federation for four years.
After two years as Director of Nursing at the Child, Adolescent and Family Health Service Ms Bryant returned in 1984 to Royal Adelaide Hospital as Director of Nursing during a period of considerable transition for nurses. At this time nurse education was moving to the tertiary sector and the new "career structure" was being put in place. In 1990 Ms Bryant accepted the position of Director of Nursing Policy and Planning in the Department of Health in Victoria.
The Department of Clinical Nursing was established in 1995 in collaboration with Royal Adelaide Hospital.
The Department continues to meet the needs of the health sector in providing high quality post graduate education to nurses in Australia and through its international teaching programs. Research output through higher degree courses and activities such as The Joanna Briggs Institute and Midwifery, are recognised for their high calibre and relevance to clinical practice. The success of these programs relies on the continued collaboration of the Department and the organisations that provide health care. The impact of this partnership was demonstrated recently at Royal Adelaide Hospital's Research Symposium in which research projects conducted at the hospital were presented. Over 70 presentations were conducted, the majority by clinicians who now see clinical research as a reality rather than an ideal.
1999 also marks the end of an era for the Department of Clinical Nursing with the departure of the Head of Department, Professor Alan Pearson. As the foundation Chair of Clinical Nursing, Professor Pearson has seen the Department establish itself as a leader in innovative and clinically focussed education and research programs in nursing. His commitment to the principles on which the Department were founded and his efforts in developing this strong and vibrant organisation are applauded.
It is an honour to have been invited to give the 1999 Joan Durdin Oration. Joan is an inspiration to us all. She has moved from teaching thousands of nurses about the mysteries of nursing to write extensively about nursing history. Her books will ensure that the contribution made by nurses, particularly those at Royal Adelaide Hospital, to health care will not be forgotten. In her role as Senior Tutor Sister at Royal Adelaide Hospital, Joan was an inspiration to her many students instilling in them the knowledge and values that are required to deliver high quality nursing care. Although my personal association with Joan is not as long standing as some, she encouraged and supported me when I was Director of Nursing at Royal Adelaide and for that I was truly grateful. As a nurse educator she has been described as being the "architect of the transformation of nursing training in South Australia". (Smith, 1999)
Previous Joan Durdin Orators have focused on nursing history, its achievements and its future challenges. They have chronicled a number of aspects of the development of the professional practice of nursing.
Tonight I would like to examine another aspect of professional nursing practice - the regulation of nursing and the issue of individual responsibility for one's professional actions.
Nurses are individually responsible for the work they do. Inevitably, there are lapses in nursing performance but it is my contention that the culpability for professional misconduct may lie with both the individual nurse and the system in which she/he works. That is, it can be argued that the responsibility for lapses in nursing performance should often be shared. Health professional legislation in Australia is not structured to take account of this shared responsibility. I am not advocating simply for increased consideration of mitigation when clearly the health care system has contributed to unprofessional nursing conduct. I have become convinced that a radical change in legislation to afford registration boards power to investigate perceived shortcomings of the health system which have contributed to the failure of nursing performance needs to be seriously considered. To some, this may seem intrusive. To others it may appear to be stepping on the toes of quality activities. Both these assertions may be true. We still read frequently in the daily newspapers of adverse events in hospitals - events which all health professionals know could be avoided. These reports demonstrate that there still are gaps in the quality of care. I argue that there is room for registration boards to improve the quality of health care delivery.
There is a strong nexus between regulation of nursing and the individual responsibility of the nurse but the perimeters of the bailiwick of the registration boards, the role of employers and the extent of the responsibility of the nurse are not at all clear. To illustrate this point I shall present two case studies - one apocryphal and the other factual.
The setting for the first is an intensive care unit in an Australian capital city. It is winter and there is a shortage of intensive care beds throughout the metropolitan area. An unconscious patient who has overdosed with a common drug is admitted to the intensive care unit from the emergency department. The patient appears to be relatively straightforward and according to the medical officer, only requires overnight ventilation as she should regain consciousness by next morning and can then be transferred into the hands of the psychiatric service. The intensive care unit is full but it has the capacity to open a bed and there is a reserve ventilator available but without all the usual monitoring equipment. As it is winter, sick leave is high and the registered nurses are instructed that they need to double up on patients where possible. Therefore one registered nurse is assigned by the charge nurse to the overdose patient who requires relatively little care apart from the ventilator and another patient who has complex requirements. The overdose patient begins to lighten and becomes disconnected from the ventilator. This goes unnoticed by the nurse. The patient dies and the incident becomes a coroner's case.
Who is responsible for the patient's death? Is it the nurse, the medical officer, nursing administration or the board of the hospital? Is the nurse in charge accountable or does the culpability lie exclusively with the individual practitioner? Should the registration board be canceling the practising certificate of the clinical nurse? Or should responsibility for the death be shared? Should the registration board have the capacity to examine the circumstances surrounding this incident and thus enquire into the overall responsibility of the hospital? If the latter is accepted, registration boards would assume significantly greater powers than they currently possess and could come to be seen as watchdogs of the health system external to hospitals.
The second case is factual and may be well known to many of you. (Heathcote v. Nurses Registration Board of NSW and Walton 1991.) The incident took place in 1989, at Wilcannia and District Hospital in outback New South Wales. In the early hours of the morning, an Aboriginal male was brought by relatives to the hospital. The relatives described the patient as "hearing things". On examination, he had no abnormal physical signs but appeared to the nurse on duty as "being vague and confused and not fully appreciating where he was". Within a short period, he disappeared from the hospital on two occasions and the nurse who was concerned for the safety of the patient, contacted the police.
The nurse was looking after several other patients, including two young children, and there was no area in the hospital where a wandering patient could be kept separate and safe. Following the second disappearance of the patient, the nurse confirmed her action in notifying the police with the Director of Nursing. When the police returned the patient to the hospital on the second occasion, the nurse, in the presence of the police, contacted the duty medical officer on the wireless to discuss ongoing management. His advice was to test the patient's blood sugar level and, should that be normal, that the best course of action was for the patient to spend the night at the police station. This took place but the nurse was not informed that the patient would be placed in a "cell". During the night the police reported that the patient was sleeping. In the morning, when the nurse visited the police station, she was informed that the patient had hanged himself. In the absence to any evidence to the contrary, it was generally assumed that the cause of death was alcohol withdrawal.
The nurse was later found guilty of professional misconduct by the Nurses Registration Board of New South Wales and her registration canceled. Some four years after the event, an appeal to the District Court of New South Wales was upheld and her registration status restored.
This is a case in which a nurse followed established hospital procedures. She notified both her nursing superior and the medical officer on duty of the salient features of the case as far as her education and experience allowed her to interpret them. As evidence presented at the appeal confirmed, she was not able to diagnose this patient's condition and therefore sought approval for her course of action. Nowhere in the judgement is mention made of the responsibility of the health service for allowing these events to unfold. This is clearly a case of health system and corrective services failure with the appropriate corrective action being putting in place procedures that will ensure that no person who has signs or symptoms of any illness should be placed in a cell without being first fully assessed by a medical officer in a properly equipped and staffed facility.
The outcome of the appeal against cancellation of registration was that the nurse was eventually not held responsible for these events. Although the Nurses Registration Board of New South Wales had no jurisdiction to examine the circumstances of this case independently, it is astonishing that it did not acknowledge the contributing factors in its decision.
The prompt for me to try to unravel the question of why nursing regulation has such a narrow field of activity was the situation which confronted me in Nepal last year. I was lucky enough to undertake a three month consultancy on nursing regulation for the World Health Organisation. It was there that I realised that, contrary to my expectation, given I was there to assist Nepali nurses to strengthen their system of nursing regulation, there are lessons we can learn from developing countries.
In Australia, the stated purpose of health professional legislation is protection of the public. This is manifest in a number of functions of registration boards, one of which is conducting inquiries into alleged unprofessional conduct. Nepal recently passed its first nursing act following some years of intense lobbying by Nepali nurses. The focus of the act is on the nursing system rather than the individual nurse. On the face of it, this seems very curious but, in the absence of all but a few of the structures which support quality of care activities which exist in western countries, its logic is obvious. It is relevant to note that the medical board which has been established for over 20 years has never heard a disciplinary case against a medical practitioner. The cultural setting where there is a reluctance to blame individuals probably also contributes to there being a greater emphasis on the overall quality of care in the health system rather than on quality of individual practice. The nurses board is concerned with the development of standards of both undergraduate and postgraduate nursing education and consequent accreditation of schools of nursing, and standards for clinical nursing and midwifery.
This focus on standards is very much the result of the absence of other structures to support high quality nursing care. There are many reasons for this, the principal ones being that the organisation of nursing care in both hospitals and community health centres does not include a focus on the essential structural elements of quality such as organisation charts, job descriptions and performance appraisal. There is a similar lack evident in schools of nursing.
In developed countries like Australia, the situation differs as there are many structures which contribute to influence the quality of health care. Here, registration boards focus on the individual practitioner and his/her practice. This is the so called "bad apple" approach which has as its focus those practitioners who are impaired, usually by drugs or alcohol or who engage in unprofessional conduct - who thus provide care which is of a lower standard than that of their peers. By contrast, quality activities are much broader and focus on the health system as a whole and the manner in which care is organised and delivered as well as the outcomes of that care. Whilst quality activities take into account the actions of individual health professionals, they are not focused on adverse events which are purely the result of individual error, rather they focus on the system and how it creates the conditions where it is likely for an error to occur.
In developed countries, the institutional arrangements and quality activities which promote standards of clinical care include professional associations and colleges, accreditation of education programs, health service accreditation, consumer organisations, and, in the case of nursing where the great majority of the profession are employees, structures for appointment and performance appraisal of employees. All of these contribute to the quality of care being delivered.
Smith categorises the forces in the United Kingdom regulating the medical profession and thus the standard of care, as formal and informal, with external and internal sub-categories. (Smith 1998b) Amongst the formal external forces he cites the courts and the National Health Service; and the formal internal include the General Medical Council, the British Medical Association, clinical audit and the Royal Colleges. His list of informal forces is large and includes the general media, colleagues, the medical culture and patients. He postulates that the more internal the influences, the more powerful they are. (Smith 1998b) If this postulate is accepted, it follows by analogy that, in addition to the registration board, the most powerful forces regulating the quality of nursing care in Australia are nursing organisations and quality assurance activities.
So why has legislation for wider powers of regulation for registration boards not been introduced? If it became accepted that there is a strong argument for widening the powers of nursing and other health professional registration boards to encompass investigation and censure of hospitals, where would resistance to such a move lie? I believe that opposition would be found in many quarters and I shall now endeavour to identify what the sources of such resistance may be.
a) The Hegemons
The first of these is the hegemons - the professions themselves and particularly the older learned colleges - as they see themselves as being the supreme authority in their specialty. Tension between registration boards and the profession being regulated has always been evident. Professions may postulate that self regulation is preferable and there are a number of professions such as accountancy and engineering for whom self regulation has been successful. Nursing is beginning to self regulate through specialist nursing organisations such as the nursing colleges. Self regulation has long been argued by the medical profession in particular as being the preferred method of maintaining standards of care. In the case of the medical profession, this has largely been achieved through the learned medical colleges. Their standards of initial specialist training and the more recently developed standards for continuing medical education and re-certification are to be admired. However, not all medical practitioners have fellowships from one of these colleges and therefore may not be subject to their stringent standards of ongoing competence.
The most significant recent example in the United Kingdom, of the failure of medical self regulation is the Bristol case where paediatric cardiac surgery was continued despite a success rate considerably below the national average. (Smith 1998b) This has resulted in there being an inquiry into the events surrounding these deaths and the preliminary evidence presented indicates that there will be 166 claims for compensation resulting from 115 deaths of babies and 47 children who have brain damage as a consequence of cardiac surgical intervention. (Dobson 1999) Two cardiac surgeons and the medical chief executive were found guilty of serious professional misconduct with two of the three being de-registered. Self regulation failed spectacularly in this instance.
b) Jurisprudential Culture
In Australia, health professional regulation is a sub culture of the jurisprudential system and consequently has a focus on individual responsibility. Whilst the jurisprudential system does consider mitigation of sentence in specific circumstances, it nonetheless does not give consideration to wider responsibility for crimes. It would be difficult for registration boards to move away from individual responsibility and extend their bailiwicks. Registration boards are largely constituted of members of the profession being regulated and, in my experience, are keen to judge their colleagues, probably to send a message to their wider profession that the behaviour in question is not acceptable. This was particularly so in the Wilcannia Hospital case already cited.
c) Political Imperatives
In the public sector, governments have particular agendas concerning the funding of health care and these agendas are ideologically driven depending on the political colour of the government of the day. In the case of the private sector, corporations must have profitability as their goal. Neither government nor business would welcome an external watchdog which had the legislated power to require them to provide a certain level of staffing or of equipment in order to comply with standards of health care developed by an external body. Managers of hospitals and other health care institutions would argue that they must retain a mandate to allocate resources and manage as they see fit.
d) Ethical Considerations
A clear unambiguous ethical map for health care professionals will never be available. Health professionals through the very nature of their practice provide care and treatment to individuals. Structures of accountability for their actions focus on their performance in respect of their relationship with patients or clients. The public expects that focus and the relationship is exemplified through the "my doctor" or "my nurse" epithets.
This is in contrast to utilitarian ethics which was developed in late seventeenth century Britain and promoted by Mill in the nineteenth century. Essentially, this philosophy focuses on the actions which will bring the greatest utility to the greatest number. (Mackie 1990) Governments and hospital administrations must operate under the utilitarianism umbrella in order to provide services for those who most need them but, in the end, their focus, through the professionals employed to provide care, has to be a deontological one as well.
In order to address the problem of there being no unequivocal ethical map, codes of professional conduct and ethics have been developed by the nursing profession in Australia - an activity replicated in other professions and in other countries. The Code of Professional Conduct for Nurses in Australia promulgated by the Australian Nursing Council has the relationship between the nurse and the patient as its focus. One would expect this in a professional code. The registration boards promulgate this code in the expectation that, as professionals, nurses will abide by the tenets of the code. They also use it as a yardstick when hearing cases of alleged professional misconduct. The responsibility of the nurse is to practise in accordance with the Code which may at times, be at variance with the requirements of the employer. There may be a fundamental clash between the goals of the system which must take account of all those requiring care and the goals of those delivering care to individual patients.
The Code of Professional Conduct for Nurses in Australia recognises this tension as it has a section concerning the nurse's responsibility to provide safe and appropriate nursing care and provides direction for a nurse who is caught in a dilemma about care delivery. Further:
....any circumstances which compromise agreed standards of the profession, or any observation of questionable or unethical practice, should be made known to an appropriate person or authority. If the concern is not resolved and continues to compromise safe and appropriate care the nurse should report it to a relevant professional body. (Australian Nursing Council Inc.)
However, the Code of Practice for Midwives in Victoria places a different emphasis on this conundrum by focusing very much on the patient or client. One of the professional responsibilities listed is as follows:
Each midwife has a professional responsibility to identify policies, procedures or practices that are restrictive and/or may be detrimental to the standard of midwifery practice and woman-centred care. (Nurses Board of Victoria)
It goes on to say that midwives must report any practice of this nature to the relevant authority. This is a difficult situation for a midwife who is an employee as any complaint would inevitably imply criticism of either his/her employer or an individual medical practitioner.
Clarke, in an article about midwives and their relationship with their registering authority and their employers argues that midwives have the client as their object of concern which is in direct contrast to their employers - the National Health Service- which has the population at large, particularly the potential patient population as its object of concern. (Clarke 1995)
From a philosophical viewpoint, the focus on and respect for the individual is central to deontological philosophy which has its origins in moral theories according to which certain acts must or must not be done, regardless to some extent of the consequences of their performance or non-performance. (Honderich,1995)
Clarke also has a view on responsibility as follows:
The moral freedom to act in accordance with the Code can only be exercised when midwives are free from the censure of their employers or medical staff. (Clarke 1995)
e) Free Will versus Determinism
The final difficulty is the fundamental philosophical problem of whether individuals are truly free autonomous agents or whether their actions are determined by forces outside their control? Notions of free will imply that individuals have the freedom to act in whichever way they wish and therefore are responsible for their actions. Determinism implies that all events are predetermined ergo the individual does not have control over his/her actions and therefore cannot be held responsible for them. The idea of the individual as a free autonomous agent is central to the western jurisprudential system. We are in control of our own lives - professional or otherwise. However, accepting that other forces such as the environment contribute to a misadventure, does not have to mean that we abandon the notion of free will. Acceptance of a middle position, sometimes called compatabilism, where there is an acceptance that there are situations in which individual actions are constrained by circumstances, is consistent with how most of us, including nurses board members feel.
As well as considering the reasons for resistance to nursing registration boards having wider powers, I cannot close without some discussion on the environment in which health care is delivered today. This environment is complex and its very complexity illustrates the ethical dilemmas faced by nurses and other health care professionals and, I would argue, forces us to examine questions of individual professional culpability.
There is an increasing focus today on the quality of care with many types of quality measures in place in hospitals. By contrast, there is also an imperative to constrain costs. It may be argued that there is no relationship between cost and quality - that they are independent of each other. Whether there is a nexus between the two or not, there are still adverse events taking place in all hospitals, events which may be the result of inadequate systems or individual culpability. Increasingly professionals may have to accept responsibility beyond their capability because of either staff unavailability or budget constraints on the employment of senior staff. Health professionals may know that they are being requested to perform beyond their capabilities and thus compromise quality but are powerless to act to rectify the situation. It could also be the case that the basic preparation of health professionals is inadequate or that they are just plain careless.
Beardwood et al in an article about the rise in consumer rights and the restructuring of the health system in Canada, found that nurses are being blamed for the defects in the health system through complaints about their professional practice. (Beardwood 1999) They conclude the article thus:
"nurses are becoming increasingly powerless, both as professionals because of the RHPA (Registered Health Professions Act), and as workers because of the process of restructuring of health care". Concomitantly, the College of Nurses maintains a process that deflects complaints about the effects of the new managerial practices through the assignment of individual responsibility.
(Beardwood 1999)
In this context, the College of Nurses is the nurse registering authority.
The issue of the powerlessness of nurses is not new. However, nursing has advanced in many arenas in the recent past. We have achieved degree level for our basic preparation and most of our formal education courses are in universities, we participate in decision making in the health care system, we are developing the role of the nurse practitioner in Australia and in other countries and we have a nurse as chair of our registration boards in all Australian jurisdictions. However, we are predominantly a female profession with the disadvantages that brings but I do not believe that is a dominant factor in this case. What is more relevant is the relative power the employer has over the employee. Data collected with nursing registration in Victoria in 1998 shows that 1% of nurses were self employed which leaves the vast majority dependent on an employer for his/her livelihood. Autocratic structures in nursing have existed since the time of Florence Nightingale and although ameliorated to a degree by the professionalisation of nursing, they still exist in the hospital setting. Choosing whether to follow directions of an employer versus compliance with a professional code of conduct is not an enviable position. The nurse's capacity to act freely is thus constrained by the hospital's inherent utilitarian approach to management of resources.
As I have indicated, our jurisprudential system is one which may compromise the nurse's ability to do his/her best because it has its focus on the individual. Performance lapses need to be analysed to determine the extent of the culpability of the individual and the degree to which the health system has contributed. The working environment is becoming increasingly complex It is not reasonable to go into the next century without taking account and recognising in our legislation the complexities of this environment. This complexity will increase and result in even more ethical dilemmas for nurses in their practice. Resistance to changes in health professional regulation including nursing, will continue to be put forward but I believe this resistance needs to be overcome.
Health professional legislation should reflect a capacity to deal with shared responsibility for lapses in performance. Registration boards need to have their powers widened to include a responsibility to issue guidelines or standards for care and a power to investigate health care facilities where there is an alleged breach of those standards. This would not only strengthen their roles as protectors of the public but also broaden their focus to ensure that registration boards were constituted and mandated in the public interest.