The Royal College of Nursing has identified an increase in claims against nurses. Julie Wilson and Dr Richard Stacey explore the risks of nursing in primary care
Between 2009 and 2011 MPS has seen a 25% increase in its nurse members. This has seen a parallel rise in claims involving practice nurses. According to the Royal College of Nursing (RCN), the costs of claims against nurses each year are high – around £5 million. Common claims relate to failure to diagnose, poor treatment technique and medication error, whilst the highest claims relate to failure to refer on to the GP.
It is clear that as the role of the nurse has changed so have the risks associated with their ever-expanding role.
NHS reform – déjà vu
The highest claims relate to failure to refer on to the GP
In 1987 the government published a new White Paper called Promoting Better Health, which aimed not only to raise the standards of care provided for patients, promote better health and prevent illness, but also to set clear priorities for family practitioner services. It also proposed giving nurses limited powers to prescribe for patients.1
This was followed by a series of negotiations and reviews between the government and the GP profession and finally culminated in a new GP contract launched in 1990. The new contract set out what was expected of GPs, specifically around quality and financial incentives, eg, targets set for immunisation and cervical cytology. GPs would be paid extra to undertake health promotion, screening and preventative work. Employing a practice nurse was one way of achieving these targets.
The birth of nursing
The development of practice nursing is truly amazing. Back in 1984 there were fewer than 2,000 whole time equivalent practice nurses, but by 1994 the number had risen to more than 9,000 and by 2001 there were 18,500 practice nurses in the UK, which constituted the largest branch of community nursing.2 3 These nurses were experienced nurses, mainly from secondary care moving to primary care for the first time, and were employed by GPs in the practice where they worked, rather than the NHS.
The learning curve for practice nurses was steep, but they rose to the challenge
Practice nurse courses sprang up at local institutes of higher education as did courses and diplomas in disease management, eg, asthma, diabetes. The learning curve for practice nurses was steep, but they rose to the challenge, undertaking chronic disease management, new patient checks, over 75 checks, childhood vaccinations, cervical cytology, smoking cessation clinics, ear syringing and treatment room work.
They were allowed autonomy and many were running their own clinics admitting and discharging patients. Nurses became an invaluable workforce for general practice and changed the face of it from an illness-centred approach to one based on public health and health education.4
New career pathways became open to nurses with the introduction of the nurse practitioner degree course and non-medical prescribing
Over the next decade there were further pressures that impacted on the role of the practice nurse, eg, clinical governance, national service frameworks, the 2004 new GP contract and improved access. In addition new career pathways became open to nurses with the introduction of the nurse practitioner degree course and non-medical prescribing.
From April 2006, practice nurses/nurse practitioners who had undertaken the extended independent prescribing course were able to prescribe from the full British National Formulary for any condition, within their clinical competency. This skill has further developed the role of the nurse – no more waiting outside the GP’s consulting room for a prescription to be signed.
The Royal College of Nursing defines a nurse practitioner as “a registered nurse who has undertaken a specific course of study of at least first degree (honours) level and who makes professional autonomous decisions for which he/she is accountable”.5
These nurses took on increased responsibilities within general practice, including undertaking triage, managing minor illness, monitoring drug therapy and treating illnesses within their individual competencies.
General practice nurses are now supported by invaluable healthcare assistants (HCA). HCAs are not registered nurses, but many have undertaken extensive training locally at national vocational levels to undertake patient measurements, phlebotomy, ECG records, new patient checks, data collection for Quality and Outcome Framework (QOF) and, in some practices, immunisations.
Nurses must strive to assess and manage their risks and proactively challenge others about risk, in order to make professional headway and safeguard their role in the future
The role of the practice nurse continues to change as nurses prepare to take up the challenges set by the proposed reforms to primary care. As their role has changed so have the risks associated with their ever-expanding role.
Many nurses work in isolation and Jan Goldsmith, assistant director of Standards (Nursing), at the Nursing and Midwifery Council, recently stated that this in itself presents risks to safe and effective practice, especially when coupled with the inconsistent and variable opportunities for formal education and training to support practice beyond initial registration.6
MPS is concerned that as nurses’ autonomy increases, so does the risk of litigation. Nurses working at an advanced level manage their own workload and work across professional, organisational, agency and system boundaries to improve services and develop practice.7 These nurses must strive to assess and manage their risks and proactively challenge others about risk, in order to make professional headway and safeguard their role in the future.
Getting the right protection
In January 2012 the RCN will remove the indemnity element of their benefits of membership. Amongst other benefits, members of the RCN will still be entitled to:
- personal protection whenever they experience employment difficulties
- advice and representation before the Nursing and Midwifery Council (NMC)
As stated by the RCN, all NHS employers and most independent sector employers accept vicarious liability for the actions of their staff.
Vicarious liability is an important legal principle for practices. It is the liability a GP may have for the acts and omissions of an employee or some other individual for whose conduct they are legally responsible.
Practices are strongly advised to ensure that these nurses have and maintain their own indemnity arrangement
Although assistance is always at the discretion of MPS Council, it is likely that a GP would be granted assistance with requests related to claims of negligence against any of their employed nurses working at a basic level. It is unlikely that GP members would be granted assistance from MPS for such claims against nurses working in extended roles, and for this reason practices are strongly advised to ensure that these nurses have and maintain their own indemnity arrangement.
Visit the RCN website for more information >>
If your practice is a member of the MPS group practice scheme – Practice Xtra – some of the nursing staff will have complementary or discounted MPS indemnity only membership, and can apply for assistance in their own name.
For more details about the benefits available to nurses through the Practice Xtra package please call 0845 456 7767. Calls to Membership Services may be recorded for monitoring and training purposes.
Case: Flawed protocols
Nurse Owen had been a practice nurse at the Bluebell Surgery for a period of four years – she was popular with the GPs, the practice staff and patients alike. Nurse Owen had individual MPS membership.
Nurse Owen enjoyed her work, but felt that she wanted to expand her role. After discussion with the senior partner, Dr Duncan, it was decided that she would undertake a course in the management of minor illnesses. Nurse Owen completed the course and started to undertake her own minor illness clinics, working in accordance with protocols adopted from a neighbouring practice and nominally under the supervision of Dr Duncan.
Unfortunately the protocol that Nurse Owen was following was deficient
One busy Monday morning, Nurse Owen saw Emily Smith, who was a 21-year-old female patient who presented with a history of vague lower abdominal pain, loose motions and malaise.
Nurse Owen made a diagnosis of gastroenteritis and made the following entry in the notes:
- 2 day history of diarrhoea (7 episodes in total) no rectal bleeding or vomiting
- Vague abdominal pains (colicky)
- No recent foreign travel or meals out
- Passing urine without difficulty
- Occupation accountant
- On examination no evidence of dehydration
- Diagnosis Gastroenteritis
- Plan: 1. Advised re fluids. 2. Advised re analgesia. 3. Stool culture.
In the early hours of Tuesday morning, Emily developed severe abdominal pain and collapsed. An urgent ambulance was called, but despite the efforts of the paramedics, Emily was pronounced dead upon arrival at the emergency department.
A postmortem examination confirmed the cause of death as haemorrhage from a ruptured right tubal pregnancy. Unfortunately the protocol that Nurse Owen was following was deficient in that it did not mandate the following:
- Assessment of pulse and blood pressure
- An abdominal examination
- An exploration of the patient’s menstrual and contraceptive history together with an exploration of the possibility the patient may be pregnant
- A pregnancy test.
Nurse Owen’s professional confidence was shaken to the extent that she needed to have several weeks off work
Naturally, Nurse Owen was devastated at the tragic outcome in this case, and while she was supported by both friends and colleagues, she felt responsible for Emily’s tragic death.
Nurse Owen’s professional confidence was shaken to the extent that she needed to have several weeks off work, and the medicolegal sequelae of the incident were not resolved for a further two years.
MPS took the decision to assist this nurse as not only was she an MPS member with access to indemnity for claims made against her, but also because her employing GPs were MPS members. The GPs were vicariously liable and given that the practice protocols the nurse had followed were brought into question it was deemed appropriate for MPS to assist.
The GPs were vicariously liable and given that the practice protocols the nurse had followed were brought into question it was deemed appropriate for MPS to assist
Emily’s family pursued a complaint in accordance with the NHS Complaints Procedure. Unfortunately, Emily’s family were not happy at the conclusion of local resolution and they drew their concerns to the attention of the Parliamentary and Health Service Ombudsman (PHSO). The PHSO upheld the family’s complaint and made recommendations in relation to the minor illness protocols.
Emily’s death was reported to the Coroner by the emergency staff and the Coroner instigated a police investigation into the circumstances surrounding Emily’s death. Nurse Owen underwent the harrowing experience of being interviewed under caution by the police and was thankful for the presence of an MPS instructed solicitor.
Thankfully the police did not pursue any criminal charges in this matter, but Nurse Owen was called to give evidence at the Coroner’s Inquest. MPS secured an expert report from a practice nurse (for the purposes of the coroner’s inquest) who was not critical of Nurse Owen on the basis that she had followed the relevant protocol.
The Coroner returned a verdict of natural causes and under Rule 43 of the Coroners’ Rules (1984 – as amended) wrote to the practice asking that they review and amend the managing minor illnesses protocol.
The Council did not take any action against Nurse Owen on the basis that she followed the (albeit flawed) minor illness protocol
The family made a complaint about Nurse Owen to the Nursing and Midwifery Council, in which she was represented by the Royal College of Nursing. The Council did not take any action against Nurse Owen on the basis that she followed the (albeit flawed) minor illness protocol.
The family pursued a claim in negligence against the practice (all the GPs were MPS members). Given the concerns about the protocols the claim was settled on behalf of the practice by MPS with no admission of liability.
This case is fictitious, but it is loosely-based on MPS’s real experiences.
A podcast with Katrina Maclaine, Principal Lecturer in Advanced Nursing at London Southbank University, recorded at the MPS out-of-hours conference, is available to download.
In the podcast she discusses the evolving role of nurse practitioners and how to manage them safely.
Listen to the podcast >>