A Number of requests have been received in head office regarding "Indemnity" forms that Nurses could complete and submit to Management. In this regard please find attached an updated version of the form that we previously circulated.
It is our view that the minimum that should be done in any circumstances where wards are left short is that this form should be submitted.
It may not resolve the situation but it will protect you in the event that you are accused at some stage of being aware of a situation that placed patients/clients in jeopardy or militated against safe standards of practice and did nothing about it.
Please also be aware that the very existence of this form creates an added responsibility on a nurse to submit it in the event that you have a concern about any aspect of your practice. I am aware of an inquiry where a Nurse brought short staffing issues to the attention of her Management on several occasions, orally, but this was denied by Management. She was asked to account for, if this was so, why she did not complete her own Unions' (not the PNA) standard "Indemnity" form.
It may also be necessary to complete a clinical incident/close call form. This will have the benefit of alerting the insurance companies of the unsafe or potentially unsafe situation in your ward/unit. These forms should be available on the Ward/Unit.
Nurses on a Unit left short staffed should also demand a "Risk Assessment" required under Section 19 of the Health Safety and Welfare Act 2005.
In addition to this Nurses in charge of a Ward/Unit and up to and including a Hospital/Service need to be mindful of Section 80 & 81 of this Act.
Section 80 : "Liability of Managers"
Outlines that where an offence is committed 'by an undertaking and the doing of the acts that constituted the offence has been authorised, or consented to by, or is attributed to connivance or neglect on the part of, a person, being a director, manager, or other similar officer…….. or a person who purports to act in any such capacity, that person as well as the undertaking shall be guilty of an offence….."
Section 81: "Onus of Proof."
"In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement.
Definition of "Reasonably Practicable."
The extent of an obligation which is said to require an employer to take reasonably practicable measures has been explored by the Courts, particularly in the context of occupational health and safety law.
For example, in Boyle - v - Marathon Petroleum (Ireland) Ltd. (1992) 2 IR 460, the Supreme Court held that reasonable practicability creates a duty that "is more extensive than the common law duty that devolves on employers to exercise reasonable care in various respects as regards their employees. It is an obligation to take all practicable steps. That seems to me to involve more than that they should respond that they, as employers, did all that was reasonably to be expected of them in a particular situation" (Mr Justice O'Flaherty)
(Trust in Care 2005)
For example the smart alec response that I got from a Senior Nurse whom I had contacted about a unit left dangerously short, commented " what do you expect me to do, knit a nurse for you?" this Nurse Manager would in my view not meet the requirement that he did all that could reasonably be expected of him and had something happened in that Unit that individual could have been prosecuted and held personally liable.
Our advice to any nurse from the Staff Nurse acting up for a day to Directors of Nursing is not to accept responsibility for deficits arising out of the Embargo/Moratorium that is affecting patient care. Pass it on to your Line Manager by using the form attached.
In addition members need to have regard to the Directive circulated to members of all the Trade Unions in the Health Service and of the necessity to comply with these Directives.
Conference 2009 has also made it clear that branches who wish to challenge these cutbacks by way of Industrial Action up to and including strike action will receive the full support of the PNA in ensuring that the action is successful.