Interests at conflict

An intriguing conflict of interest case went before a recent tribunal, and managed to raise more questions than answers. 

A recent Nursing and Midwifery Professional Standards Committee Determination delivered in NSW raises some interesting issues concerning conflicts of interest involving third-party professionals other than the nurse themselves.

The committee had a number of matters to inquire into, but for the purposes of this article, it is the consideration of a nurse’s obligation, when confronted by another professional who – independently of the nurse – creates a conflict of interest relationship, and the consequent duty which is imposed on a nurse in such a situation. It is an interesting decision which potentially “imposes” (or confirms) a high standard and duty on a nurse in such a situation.

The facts concern two registered nurses who were members of a rural church community. They attended and treated the deceased (Ms M) who collapsed in a bathroom during a communal dinner. Dr M, the son of the deceased, and also the community general practitioner, who had shortly before left the dinner, was summoned and attended within five minutes.

Dr M appears to have then directed the care provided. RN F commenced an IV line of saline solution and Maxalon was administered, also at Dr M’s direction. At Dr M’s direction, the deceased was placed on a foam mattress and a backboard was inserted under the mattress. It was decided, in consultation with Dr M’s father (the deceased’s husband), who was also the deceased’s health-care proxy, not to call an ambulance and transfer the deceased to a nearby rural hospital, approximately 25 kilometres, or a 15–20 minute drive away. Instead, palliative care was provided in the community by Dr M, the two nurses and others. The deceased died six days later.

Expert evidence indicated that the deceased had suffered from a stroke or a subarachnoid haemorrhage for which only a CT scan would have led to a definitive diagnosis. The treatment for a subarachnoid haemorrhage was brain surgery. The deceased’s prospects of surviving brain surgery without significant disability were assessed by Dr M (and which the committee accepted), as being approximately 30–40 per cent. The nearby rural hospital did not have such facilities.

One of the questions before the committee was whether the two nurses should have questioned Dr M about the decision not to refer his mother (the deceased) for diagnosis or treatment. The committee answered in the positive, concluding that the decision not to refer the deceased was extremely serious, as it deprived her of a definitive diagnosis and of treatment options which could have (emphasis added) resulted in her recovery.

The committee found that the nurses should have recognised Dr M’s clear conflict of interest as his mother’s treating medical practitioner, and questioned his ability to advise his father (the deceased’s health care proxy) – remembering that neither of the nurses was present or privy to the discussion(s) between Dr M and the deceased’s medical power of attorney (the deceased’s husband).

The committee concluded that a nurse must be alert to the possibility of such a conflict of interest, and should question a medical practitioner when serious decisions are being made concerning the treatment of a family member if the medical practitioner does not propose to obtain independent medical advice where it is ‘available’.

Did the committee arrive at the correct or appropriate conclusion and/ or determination? This is somewhat difficult to answer with reference to the committee’s determination, as there is almost no discussion or analysis concerning their process of logical or legal reasoning (understandably – this is not a criticism, as a tribunal determination is not an academic justification of their reasoning).

That said, this determination potentially places on a nurse a professional responsibility to be aware of and/ or have actual knowledge of a third parties relationship with a patient and arising out of the same, identifying whether there exists or is a potential for a conflict of interest. That is, the nurse has not ‘brought about’ or created the conflict of interest, does not actually involve them (per se) and involves another professional, yet the nurse has imposed a level of accountability.

In looking at the determination from another prism of inquiry, the nurse is responsible, through their relationship with the patient, for the identification and counselling of a third party (doctor) who, through their own actions, has brought about a conflict or potential conflict of interest, independently of the nurse.

It is arguable that the role of the nurse in relation to the patient requires them to be inquisitor, enquirer and counsellor of others.

The law requires, in the area of tortuous and other liability, that I am liable for my actions against ‘my neighbour’ (but only that which is foreseeable and not too remote), or in contract, that I am liable for those which I intend to be in ‘legal relations with’; or in criminal law, that which I ‘intend’ (mens rea) for my culpable actions. The arguable potential difficultly with this determination is that it may lead to administrative law principles (which this decision/ hearing is by its very nature) extending the onus and requirement to situations which are not legally defined or jurisprudentially settled. The facts of this determination are unique in that the doctor, deceased and the nurses knew each other well, and certainly, of the various relationships.

The concern is what about where there may be some ‘suggestion’ or ‘suspicion’ by a nurse of a conflict of interest due to another’s failure to consider their position?

Will this determination develop over time to become a positive duty of enquiry or investigation in such a situation? Where will the boundary of reasonableness, in the circumstances, be drawn?

What level, means or onus of inquiry is to be cast on a nurse in these circumstances? Will there develop in the future, an onus for a nurse to be present in discussions between medical staff and medical powers of attorney concerning future treatment of patients?

These are only potential possibilities. Nothing is criticised on the basis of the unique factual circumstances and relationships of the matter. The difficulty may arise in the future where the facts are not so clear.

This determination reminds me, in relation to the nurses involved, of Samuel Taylor Coleridge’s statement, “[I]t sometimes happens that we are punished for our faults by incidents, in the causation of which these faults had no share” (1817) in arguendo (emphasis added).

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