The focus of this chapter is the moral aspects of the nurse–patient relationship. Some people might think Carole is treating Christine with disrespect by misleading and then avoiding her. Others might think Carole is just being realistic. After all, the doctor really is busy and will not be free until 11.30 a.m. In order to work out whether or not this is an appropriate way to treat a patient, the nurse will need to have a good understanding of their responsibilities to their patients and the moral basis of those responsibilities.

Rights and obligations are like two sides of the same coin. A legal right comes with a corresponding obligation, or duty. A right is a legal entitlement to do something, and an obligation is the constraint upon individuals’ behaviour that comes with that entitlement. However, the nurse–patient relationship involves more than legalities. As discussed in Chapter 1, interpersonal relationships involve moral values, such as respect, beneficence and compassion.

This chapter will further explore the moral and legal aspects of the nurse–patient relationship, with special attention paid to the role of trust. Lena’s situation demonstrates how a patient can be disempowered and rendered increasingly vulnerable through careless use of professional power. Lena’s sadness at being parted from her friend (a normal reaction) has been turned into a medical condition (or ‘medicalised’), which is then recorded in her file as if it is a fact about her. Then this purported medical condition is used as a reason to pry into Lena’s private life – and all without any consultation with Lena herself. When Lena expresses quite justifiable outrage, she is further cast as a problem patient, and her anger is regarded as part of her emotional instability.

Chapter 2 explained the main areas of the law, including the differences between civil and criminal law. This chapter will focus on one of the main parts of the civil law that is relevant for nurses: the law of negligence. The law of negligence allows a person to bring legal proceedings against another person to correct a wrong or harm that the other person has done to them. Usually the person who has been harmed (the plaintiff) will seek payment of money (called ‘damages’) in compensation for their injury from the person whose act or omission caused the harm (the defendant).

This chapter will outline the key parts of the law of negligence, with a particular focus on the special rules that have developed in relation to health-care professionals, including nurses. By understanding how the law applies to things nurses do that can cause people harm, it should be possible for nurses to better avoid acting negligently.

Just like everyone else, nurses sometimes make mistakes that can result in harm to others. This chapter looks at how errors can occur in nursing practice and some ethical issues involved in responding to them. The Nursing and Midwifery Board of Australia’s (NMBA) Code of Conduct for Nurses (NMBA 2018b) makes a number of statements in relation to the safe conduct of nursing practice – for example.

The focus of this chapter is consent. Consent concerns the granting or withholding of permission to receive care. It may seem surprising that Ping Le would let a surgeon operate on her without wanting to know exactly what is going to happen to her, but some people do occasionally respond in this way – for example, when they can no longer tolerate a painful condition. But is this acceptable from a legal point of view? What if Ping Le had a mental health condition that affected her ability to understand the surgery being proposed? Who could consent for her in that case? This chapter addresses the legal requirements of consent for adults and children, and looks at the place of guardianship and advocacy in decision-making. It also considers the situation of people who are not mentally competent and may require emergency care or need to be restrained against their will.

Although nursing is a health-care profession, and nurses are required to have clinical skills in order to practise, the law establishes expectations that must be met. When a health-care professional such as a nurse fails to meet these standards, the law can intervene in a number of ways that can have very significant consequences.

For example, in 2011 a six-year-old boy named Jack was admitted to the Children’s Assessment Unit at Leicester Hospital in England around 10.30 a.m. Jack had Down syndrome and a known heart condition. He had been suffering from vomiting and diarrhoea, and had difficulty breathing. He was cared for by a trainee paediatrician, Dr Hadiza Bawa-Garba, and nursing staff, including Ms Isabel Amaro. Jack died that evening from an infection. His death was immediately reported to the Coroner.

The focus of this chapter is culture, and in particular developing nursing care that is culturally sensitive and culturally safe. In the vignette above, Li Wong’s family requested that information about her illness and prognosis be withheld from her because she was vulnerable, and they believed she would be severely affected by this information and the implications of it for her future well-being. In their view, emotional stability and well-being were essential to improving health. But to many nurses in Australian culture, the idea of concealing the truth from Li Wong would seem improper. Truthfulness underpins our practices of informed consent. In Australia, a patient is expected to give fully informed consent before treatment is provided, and should be provided with information about the risks and benefits of a procedure; otherwise, the nurse may be liable for assault (see Chapter 5). Truthfulness also forms the basis of clear communication and trust in the nurse–patient relationship.

Issues relating to life and death go to the heart of human experience and the value we place on our own existence and that of others, especially in those relationships we care about most. This is no doubt because we are mortal and we know we are all going to die at some point in time. Our mortality makes us fundamentally vulnerable. This book has considered ethics in the context of human vulnerability. We are vulnerable because we can be affected by things across the lifespan, and we can be affected by things because we are physical beings – part of the world around us and subject to the passage of time. Consequently, a life can come to an end at any time. For this reason, death is not only completely normal, but inevitable. Nevertheless, death is typically regarded as something regrettable. As philosopher Bernard Williams notes, our experience of being alive is essentially of having an open-ended and indeterminate future. From this perspective, death is ‘an abrupt cancellation of indefinitely extensive possible goods’ (Nagel 1979: 9–10).

As a nurse, you will be called upon to support, care for and protect people who are vastly different from yourself. How you respond to the diversity of human beings will be a measure of your own humanity as well as your professionalism. The NMBA Code of Conduct and the ICN Code of Ethics are designed to support you in this. Certainly, caring does not come as easily to some nurses as it does to others. After all, it is not always pleasant being around incapacitated, sick or grieving people. So why do people want to support the ill or incapacitated? What is it about human nature that causes people to care for each other at all?

This chapter addresses the topic of the information we receive about or from patients and introduces the concepts of privacy and confidentiality in relation to the management of patient information. It also sets out your legal requirements for mandatory reporting, including reporting harmful conduct of health professionals and others.

The above case demonstrates the complexity of caring for people and how easily private and sensitive information recorded about a patient in their interests can result in a breach of confidentiality and unprofessional conduct. Kate appropriately recorded very personal information that Ross had disclosed to her because she judged it relevant to his care. Yet other nurses perceived this to be a source of curiosity and gossip, and in sharing this with a nurse not involved in his care, had acted unprofessionally and breached Ross’s confidentiality. Their conduct was therefore unethical, and disciplinary action should have been taken (see the section on mandatory reporting below).

This book has been written specifically for nurses training and practising within Australia, to assist and encourage them to develop a strong and well-defined sense of professional and moral identity. It endeavours to provide an integrated, practical framework for understanding the ethical and legal dimensions of nursing practice in Australia by referencing Australian law and reflecting the Australian clinical context and cultural norms.

This book refers to ‘patients’ rather than ‘clients’. The question of which term is most appropriate is not easily resolved – if it can be at all – because there are many ways to interpret both terms. Consequently, we have made the decision to use the term ‘patients’ because it best approximates our use of the concept of vulnerability.

Introduces the concept of freedom of speech and the legal and social constraints on speech. Free speech is often framed as absolute, but in practice our speech is limited by laws – bans on obscenity, threats, even entire languages. Other social forces hedge our speech as well: parents and teachers attempt to steer our speech; employers tell us what to say and what not to say; and groups of friends set norms and exact punishments for speech behavior in social settings. In all, as speakers and writers we contend with explicit and implicit rules about what we can and cannot say.

Chapter 3 provides the key historical antecedents for Chapters 4-7, focusing on changes in the domains of kinship, religion, and law. It examines the decline of traditional authority in medieval Europe, specifically the weakening of inherited monarchical and aristocratic rule, and of the Church and associated belief in supernatural beings. At the same time, the power of state-based law was consolidating and expanding, developing new ideas of ‘legal persons’, as ‘fictions of law’, that would become crucial to the creation of new corporate actors and the domestication of competition. This shift combined with intensifying trans-Atlantic competition among European empires, and novel experiments in republican and democratic government in America and France, created a new context for the development of law and competition.

Shareholder value maximization is the law. It ought to be the law. This is, in part, because the chief alternative available in liberal democratic societies – stakeholder capitalism – is fundamentally flawed. If executives such as those who signed the Business Roundtable’s 2019 statement on corporate purpose really tried to run their companies according to the altruistic principles laid out therein, they would find it an impossible task. Developing the set of objective and quantifiable metrics necessary to operationalize stakeholder capitalism will prove an intractable problem. Even if the requisite set of metrics could be designed, boundedly rational managers cannot reasonably be expected to balance the huge number of competing factors necessary to account for the varied interests of the firm’s many constituencies.

Defines the terms corporation, corporate purpose, shareholder value maximization, stakeholders, stakeholder capitalism, corporate social responsibility, and ESG (environmental, social, and governance). Provides the plan of the work.

Stakeholder capitalism results in a loss of accountability, as executives who are responsible to everyone are responsible to no one. Stakeholder capitalism would be extremely difficult to implement. Proposed means of doing so – such as constituency boards, codetermination, and team production – are all unworkable. Stakeholder capitalism is inconsistent with democratic capitalism. Shareholder value maximization is the result that would emerge if shareholder and stakeholders could bargain (the so-called hypothetical bargain). Shareholder capitalism is pro-social. The profit motive results in socially efficient resource allocation. The profit motive is an essential motivational spark for innovation. The profit motive promotes freedom.

The general matrix of medieval misogyny was based on women’s corporeal and moral inferiority as opposed to men, and found its ultimate biblical justification in the second version of the Creation (Genesis 2:18–23).1 After shaping [formavit] Adam from the slime of earth, God constructs [aedificavit] Eve from Adam’s rib, and she becomes bone of his bones, flesh of his flesh. Despite the existence of the first version (Genesis 1:27), where God creates [creavit] man and woman at the same time and to his image, the second version will position the female from the beginning as a bodily derivate of the male. This inferiority acquires further moral dimension with the Fall (Genesis 3:1–7): the serpent approaches Eve, who will eat from the forbidden fruit and give it to Adam. The female is the one who is responsible for the hardships and sufferings of earthly existence, because of her proneness to transgression and deceit. The widespread dissemination of this second version to all strata of society continued to maintain and reinforce negative stereotypical attitudes toward women in the Middle Ages and beyond.

Chapter 2 concluded that coherence is linked to legal reasoning, but where exactly within the process of legal reasoning does coherence fit? Chapter 3 presents and contrasts two views about how legal reasoning is deployed — the positivist view and the non-positivist (interpretivist) view. Both agree that the law carries expectations with respect to the achievement of certain values, i.e., legal certainty and substantive correctness (justice). But they disagree about the relationship between those two values when it comes to legal reasoning, hence the different models for coherence that each view gives rise to. The positivist view gives rise to a model of ‘double coherence’, whereas the non-positivist view gives rise to a model of ‘single coherence’. The chapter ultimately sides with the latter view. Two grounds are offered for this conclusion. Firstly, the core assumptions of the positivist view regarding the different processes of legal reasoning allegedly at play when one is deciding easier and harder cases do not seem to hold. Secondly, following the positivist view may result in certain methodological pitfalls for adjudicators which the non-positivist view seems to avoid.