Nursing Law and Ethics

7.4 Conclusions

The nurse must confront the same difficult questions of disclosure as her medical
counterpart when treating the patient as a sole practitioner. Her role is complicated
however by the fact that she may feel that she has a role to play as advocate for her
patient. The role of nurse as patient advocate has not yet been recognised in law
and it remains to be seen to what extent this position will change in the future. At
present ,fear of placing her job in jeopardy and the risk of legal liability may
constrain the nurse to do little more than simply protest. But the mere fact of
disagreement may prompt reconsideration of what information should be given to
the patient ,a continued debate which must in the long term be to the patient's
advantage. It is also important to note that both professional and legal develop-
ments are militating in favour of fuller ,franker disclosure and enhanced respect
for patient autonomy.
If the Government go ahead ,as they have indicated that they intend to in the
documentMaking Decisions,and enact the Law Commission's proposals on mental
incapacity ,albeit in a truncated form ,this will continue the task of clarifying the
boundaries of capacity. The movement towards standardisation in clinical practice
through the establishment of bodies such as the National Institute for Clinical
Excellence ,National Patient Safety Agency and the Commission for Health
Improvement may facilitate the process of standardising approaches to disclosure.
The recommendations of Professor Ian Kennedy in the Bristol Inquiry will also
have an important part to play in defining the nature of consent to treatment in the
future. The Human Rights Act 1998 is likely to lead to some of the questions
surrounding consent to treatment being given further judicial consideration. But
the legal process is simply the tip of the iceberg of clinical practice. Nurses have a
vital role to play in the actualisation of the reality of respect for consent to treat-
ment on the ward and in the community.

7.5 Notes and references

1. See generally on consent to treatment: Brazier ,M. ?1992)Medicine, Patients and the Law,
   Chapters 4 and 5 ,Penguin ,London; Kennedy ,I. & Grubb ,A. ?2000)Medical Law,
   Oxford ,Chapter 5.
   University Press ,Oxford ,Mason ,J.K. & McCall Smith ,R.A. ?1999)Law and Medical
   Ethics,5th edn ,Chapter 10 ,Butterworths ,London; McHale ,J. & Fox ,M. ?1981)Health
   Care Law Text and Materials,Sweet and Maxwell ,London and also DoH ?2001)
   Reference Guide to Consent for Examination and Treatment.Deparment of Health ,Lon-
   don.


2. See for example Wicks ,E. ?2001) The right to refuse medical treatment under the
   European Convention on Human Rights 8 Med LR 17.


3. See for example ,Chapters 9a ,10a and 12a in this book.


4. See for example ,Kennedy ,I. & Grubb ,A. ?2000)Medical Law.Oxford University Press,
   Oxford ,Chapter 5.


5. See Mason ,J.K. & McCall Smith ,R.A. ?1999)Law and Medical Ethics,5th edn ,p. 271.


6. Keown ,J. ?1989) The Ashes of AIDS and the Phoenix of Informed Consent 52 Med LR
   790.

118 Nursing Law and Ethics