general, and far less prescriptive than those imposed by the Senate of Surgery and
the GMC, and nurses are unlikely to find that these guidelines deprive them of
theirSidawayshield Sidawayis discussed in Chapter 7). The relevant sections,
clauses 27 and 28, say:
`... it is important that you give the information in a sensitive and under-
standable way and that you give the patient or client enough time to consider it
and ask questions if they wish. It is not safe to assume that the patient or client
has enough knowledge, even about basic treatment, for them to make an
informed choice without any explanation... It is essential that you give the
patient or client adequate information so that he or she can make a meaningful
decision...'6.3.3 The relevance of protocols to civil liability
The points above about guidelines raise the general question, important to nurse
practitioners, of the relevance of protocols to issues of breach of duty. Clinicians
from all medical and nursing specialities worry about protocols because they think
that failure to follow them will necessarily connote negligence. In legal theory, of
course, this is nonsense:Bolamdoes not cease to apply simply because a protocol
has been drafted.
In the context of nurses failing to follow protocols, two situations have to be
distinguished. The first is where a nurse has carelessly failed to do what the
protocol says. An example might be failure to give the prescribed regime of post-
operative antibiotics because of forgetfulness or ignorance of the regime. Here,
Bolamwill not protect, becauseBolamnever applied: there is no responsible body
of nursing opinion which forgets or is ignorant of protocols. The second situation
is where a nurse has failed to do what a protocol says because she exercised her
own independent clinical judgement and decided to do something other than what
the protocol says. Here,Bolamwould excuse the nurse if there were a responsible
body of nursing opinion which would, in the relevant circumstances, have acted in
the way that the nurse did.
As a general rule, adherence to local or national protocols is likely to protect,
because the courts are likely to find that those protocols represent responsible
practice if not embodying the only responsible practice) [14]. Departure from
local protocols may beBolam-justifiable if the departure was made in the exercise
of clinical judgement for responsible clinical reasons. Departure from national
protocols, such as those imposed by NICE, may create problems, even if the
departure is endorsed by other members of the same profession, because the
courts will tend to think that nationally endorsed protocols definitively circum-
scribe acceptable practice.
Note thatBolitho's endorsement of the propriety of looking at the reasoning
which leads to clinical decisions is likely to bring greater judicial readiness to look
at the research and consultation which led to the formulation of the relevant
guidelines. It is therefore important that the formulation process is well
documented.
80 Nursing Law and Ethics