Legal System: Types of Law, Tort Law and Liabilities

Ms. Tessy Charlie (M.Sc Nursing)

Introduction
Law is a dynamic system of rules and guidelines, usually enforced through a set of
institutions. It shapes politics, economics and society in numerous ways and serves as a social
mediator of relations between people. It is a system for interpreting and enforcing the laws.
The principle of civil law is to provide all citizens with an accessible and written collection of
the laws which apply to them and which judges must follow. It is the most widespread type of
legal system in the world, applied in various forms in approximately 150 countries and oldest
surviving legal system in the world.
A Knowledge of legal system in nursing is absolutely essential for all nurse to safe
guard self and clients from legal complications. Consumers are becoming in caressingly aware
of their legal rights in the health care. It is essential there for a nurse should know her legal and
professional boundaries and their consequences.

Legislation can be primary or secondary.

Primary legislation consist of Acts of parliament, known as statutes, which come into force at
a date set in the initial Act of parliament or subsequently fixed by order of a minister. The date
of enforcement is often later than the date the Act is passed by the two houses of parliament
and signed by the Crown. As conflicts and disputes arise and are brought before the courts, the
judges have to decide in the light of existing statutes and decided cases which are binding
upon them, the principles which apply.

Terminologies
Accountability: Being responsible for ones actions: a sense of duty in performing
nursing tasks and activities.
Advance directives: Written or verbal instructions created by the patient describing
specific wished about medical care in the event he or she becomes incapacitated to
incompetent. Examples include living wills and durable powers of attorney.
Adverse event: An injury caused by medical management rather than the patients
underlying condition. An adverse event attribute to error is a preventable adverse
event.

 Case law: Body of written opinions created by judges in federal and state appellate
cases: also known as judge- made law and common law.
Civil law: A category of law (tort law) that deals with conduct considered
unacceptable. It is based on societal expectations regarding interpersonal conduct.
Common causes of civil litigation include professional malpractice, negligence, and
assault and battery.
Common law: Law that is created through the decision of judges as opposed to laws
enacted by legislative bodies (i.e., Congress)
Criminal Negligence: Negligence that indicates reckless and wanton disregard for
the safety, well being, or life of an individual; behavior that demonstrates a complete
disregard for another, such that death is likely.
Defendant: The individual who is named in a persons (Plaintiffs complaint as
responsible for an injury; the person who the plaintiff claims committed a negligent
act or malpractice.
Liability: Being legally responsible for harm caused to another person or property as
a result of ones action; compensation for harm normally is paid in monetary
damages.
Licensing laws: Laws that establish the qualifications for obtaining and maintaining a
license to perform particular services.
Plaintiff: The complaining person in a lawsuit; the person who claims he or she was
injured by the acts of another.
Tort: Civil Wrong or injury committed by one person against another person or a
property.
Definition
1. Law is a system of rules that enables society to function efficiently and harmoniously
(Latimer)
2. It is a set of rules established by a governing power to guide actions, regulate conduct of
people and impose sanctions
3.

A legal system is made up of a set of legal institutions, procedures and rules aimed at
ordering the behaviour or relations of people in society.

4. A `law` includes any Ordinance, order, bye-law, rule, regulation, notification, custom or
usage having the force of law.
-

Article 13 (3) Of Constitution Of India

2

5. Law: Law is the sum total of rules and regulations by which a society is governed.
6. Legal system: Legal system is Judges Action rather than intention.
7. It is an Act passed by the legislature and assented to by the President of India or
Governor of a State.
-

Arts 111 and 200 of the Constitution of India

Philosophy of law
Philosophy of law (or legal philosophy) is concerned with providing a general
philosophical analysis of law and legal institutions. Issues in the field range from abstract
conceptual questions about the nature of law and legal systems to normative questions about
the relationship between law and morality and the justification for various legal institutions.
There are roughly three categories into which the topics of legal philosophy fall: analytic
jurisprudence, normative jurisprudence, and critical theories of law.
Analytic jurisprudence involves providing an analysis of the essence of law so as to
understand what differentiates it from other systems of norms, such as ethics. Normative
jurisprudence involves the examination of normative, evaluative, and otherwise prescriptive
issues about the law, such as restrictions on freedom, obligations to obey the law, and the
grounds for punishment. Finally, critical theories of law includes critical legal studies and
feminist jurisprudence, challenge more traditional forms of legal philosophy.
1. Analytic Jurisprudence
The principal objective of analytic jurisprudence has traditionally been to provide an
account of what distinguishes law as a system of norms from other systems of norms, such as
ethical norms. As John Austin describes the project, analytic jurisprudence seeks the essence
or nature which is common to all laws that are properly so called (Austin 1995).
Accordingly, analytic jurisprudence is concerned with providing necessary and sufficient
conditions for the existence of law that distinguish law from non-law.
2. Normative Jurisprudence
Normative jurisprudence involves normative, evaluative, and otherwise prescriptive
questions about the law. Here will examine three key issues: (a) when and to what extent

laws can restrict the freedom of citizens, (b) the nature of ones obligation to obey the law,
and (c) the justification of punishment by law.
Characteristics of law
In a democracy, the objective of laws is to serve the best interests of the people and
reflect their highest aspirations. Laws are the useful, i.e., problem-solving, means of
government by which the ends of government are attained. Since laws have the same general
characteristics as all other useful products, they, too, can be designed and improved by the
same quality methods used to design and optimize other products.
Every Law Of Government Has The Following Characteristics:
Letter of the Law
A law is a written order a set of instructions, or software that provides directions for
human behavior. The entire written content of a law is the "letter of the law," and it is nothing
more or less than the fixed arrangement of its words and punctuation. The letter of the law
conveys the spirit of the law.
Spirit of the Law
Contained within the letter of the law is the purpose, or intent, which is termed the
"spirit of the law." For any given law, the spirit of the law is the hoped for change, or benefit,
that the law will produce, as predicted by the designers of the law. In other words, laws are
tools that are intended to be useful. Since the spirit of the law is the reason for its existence,
the letter of the law is subordinate to the problem-solving intent of the law.
Sanctions
Laws are the forcible means by which a government achieves its goals; they are
coercions, restrictions, prohibitions, or commands for action that attempt to regulate or
change the behavior or status of those individuals and institutions that are subject to the law.
Subsidies, fines, and imprisonment are examples of mechanisms that may be used as the
forcible sanction of a law.

 Costs
All laws consume and divert resources. The costs to a government for the creation and
operation of its body of laws are borne by the people. To pay the direct costs of laws,
governments create and enforce additional laws (at additional cost to the people) to raise
revenue through sanctions such as taxes, fees, and fines.
Side Effects
Laws, like all other human creations, may or may not be useful, but they always
produce unintended side effects. The parameters used to measure the side effects of laws are
the human rights, living standards, and quality of life standards of the people, any or all of
which may be unintentionally degraded when a law is enforced.
Performance
The performance of a law is, simply, the measure of the problem-solving benefit of
the law minus the measured sum of its burdens (restrictions, costs, and side effects). If the
net benefit (benefit minus burdens) is positive, the law is useful. If the net benefit is zero, the
law is useless. If the net benefit is negative, the law is detrimental. For a democracy, the
only valid laws are those whose net benefit is positive.
Fallibility
Laws are the product of human creative efforts and are therefore fallible. They may
fail in their objective as a result of design defects or become outmoded. They may also incur
excessive costs or produce unacceptable side effects. Fortunately, laws, like every other
human-made product, may be improved by design changes (amendments) and they may be
repealed when they are found to be less than useful.
Sources of law
Source means origin which something is ultimately derived and often refers to the
causes operating before the thing itself comes into being. Jurists differ widely to the origin of
law. One of the legal commentator traces its origin in general awareness of the people at any

point of time. Along with ethics, professional nursing conduct also is regulated by a variety of
laws. There are two major sources of law.

Statutory Law

Common Law

Customs/ Customary Law

Judicial precedents

Statutory Law:
Laws that are written by legislative bodies, such as Congress or State Legislatures are
enacted as Statutes.
Common Law:
It is also known as decisional or judge- made law. It is the law that is created through
the decision of judges as opposed to laws enacted by legislative bodies
Customs or customary law:
Custom is the most ancient of all the sources of law and has held the most important
place in the past though it is importance is now diminishing with the growth of legislation and
precedent. Custom is a habitual course of conduct observed uniformly and voluntarily by the
people concerned. No custom shall have the force of law if it in manner violates the
Fundamental Rights. A custom must have the following requisites: - (i) Antiquity (ii)
Reasonableness (iii) Continuous observance (iv) Conformity with Statute law and public
policy (v) Consistency (vi) Obligatory force. (vii) Peaceable enjoyment.

Judicial precedents:
This doctrine means adherence to the earlier decision and not unsettling things, which
are already decided. This doctrine is based on expediency and public policy.
Classification of Sources
(I) Formal sources These are the sources from which the law derives its force and validity.
Of course, the only authority from which laws spring and derive force and validity is State.
(ii) Material sources `Material sources of law` refer to the various processes, which result
in the evolution of the materials, which are the constituents of law. Material sources may be
divided into:

a) Legal sources - These are the sources, which are recognized by the law itself as
authoritative e.g. i. Statute law - having its force in legislations; ii. Case law - having its
source in precedents; and iii. Customary law - having its source in customs.
b) Historical sources - The sources, which have no binding, force and which are not
recognized by law are referred to as historical sources e.g. (i) Juristic writings; (ii) Literary
works; and (iii) Foreign decisions.
Principal costs of a law of government
There are nine principal costs of a law of government:
1) The cost of the research and design effort that is required to create the law.
2)

The cost of the legislature to conduct the legislative process and perform

legislative oversight of the law.

3) The cost to promulgate the law, its amendments, and eventual repeal.
4) The disbursement of funds from the treasury as specified by the law.
5) The cost to enforce the law.
6) The cost to administer and interpret the law in the courts of justice.
7) The cost of compliance: the time, labor, and funds that are expended by those who are
required to comply with the law.
8) The opportunity cost, or the loss of opportunity for individuals and institutions to conduct
alternative activities of high value, such as education or research, because the resources for
those activities were instead applied to the law.
9) The cost to assure and improve the quality of the law through quality assurance (QA) and
quality improvement (QI) programs.
Functions of law in nursing
The law serves a number of functions in Nursing.
1) It provides a frame work for establishing nursing actions in the care of clients in legal.

2) If differentiates the nurses responsibility from those of other health professionals

3) Helps establish boundaries of independent nursing action.
4) Assists in maintaining standard of nursing practice by making nurses accountable
under the law.

Legal system in India

The main sources of law in India are the Constitution, statutes (legislation), customary
law, and case law. The statutes are enacted by Parliament, state legislatures and union
territory legislatures. Because India is a land of diversity, local customs and conventions that
are not against statue or morality or otherwise undesirable are, to a limited extent, also
recognized and taken into account by the courts while they administer justice in certain
spheres. Also, people of different religions and traditions are governed by different sets of
personal law with respect to matters relating to family affairs.
A unique feature of the Indian Constitution is the judicial system. A single integrated
system of courts administers both union and state laws. The Supreme Court of India, seated
in New Delhi, is the highest body in the entire judicial system. Each state or a group of states
had High Court under which there is a hierarchy of subordinate courts. The Chief Justice and
the other judges of the Supreme Court are appointed by the President. The Supreme Court
has original, appellate and advisory jurisdiction. Its original jurisdiction extends to the
enforcement of fundamental rights given by the Constitution and to any dispute among states
and the Government of India. The decisions of the Supreme Court are binding on all courts
within the territory of India.
While the judicial process is considered fair, a large backlog of cases to be heard and
frequent adjournments can result in considerable delay before a case is closed. However,
matters of priority and public interest may be dealt with expeditiously, and interim relief may
be allowed in other cases, where appropriate. At the village level, people are encouraged to
solve their local problems with help of "Panchayats." The Panchayat is a group of five
respected people of the village whose ruling on the matter is final. To encourage trade and
industry to have recourse to arbitration rather than time-consuming court litigation, the
existing arbitration law is proposed to be revised under the Arbitration and Conciliation Bill
1995.

9 Supreme Court
The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive
original jurisdiction extends to all disputes between the Union and one or more states or
between two or more states. The Constitution gives an extensive original jurisdiction to the
Supreme Court to enforce Fundamental Rights. Appellate jurisdiction of the Supreme Court
can be invoked by a certificate of the High Court concerned or by special leave granted by the
Supreme Court in respect of any judgment, decree or final order of a High Court in cases both
civil and criminal, involving substantial questions of law as to the interpretation of the
constitution.
The President may consult the Supreme Court on any question of fact or law of public
importance. The Supreme Court of India comprises of the Chief Justice and not more than 25
other Judges appointed by the President. Judges hold office till 65 years of age.
9 High Courts
There are 18 High Courts in the country, three having jurisdiction over more than one
state. Bombay High Court has the jurisdiction over Maharashtra, Goa, Dadra and Nagar Haveli
and Daman and Diu. Guwahati High Court, which was earlier known as Assam High Court,
has the jurisdiction over Assam, Manipur, Meghalaya, Nagaland, Tripura, Mizoram and
Arunachal Pradesh. Punjab and Haryana High Court has the jurisdiction over Punjab, Haryana
and Chandigarh.
Among the Union Territories, Delhi alone has had a High Court of its own. The other
six Union Territories come under jurisdiction of different state High Courts. The Chief Justice
of a High Court is appointed by the President in consultation with the Chief Justice of India
and the Governor of the state. Each High Court has powers of superintendence over all courts
within its jurisdiction. High Court judges retire at the age of 62.
The jurisdiction as well as the laws administered by a High Court can be

altered both

by the Union and State Legislatures. Certain High Courts, like those at Bombay, Calcutta and
Madras, have original and appellate jurisdictions. Under the original jurisdiction suits, where
the subject matter is valued at Rs.25, 000 or more, can be filed directly in the High Court.
Most High Courts have only appellate jurisdiction.

Major legal systems of the world

Other names

Source of law

Common law

Civil law

Socialist law

Islamic law

Anglo-American,

Continental,

Social

Religious law,

English, judge-made

Romano-Germanic

Case law,

Statutes/legislation

statutes/legislation

Sharia Law
Statutes/

Religious

legislation

documents, case
law

Lawyers

Control courtroom

Judges dominate
trials

Judges dominate

Secondary role

trials
Judges'

Experienced lawyers

Career judges

qualification

Career
bureaucrats,

Religious as well

Party members

as legal training
Ranges from

Degree of
High; separate from

judicial
independence

High

the executive and the

very limited to
Very limited

high

legislative branches
of government
Juries

Provided at trial

May adjudicate in

Often used

level

conjunction with

lowest level

judges in serious

Maliki school,

criminal matters

not allowed

10

Allowed in

Types of law
LAW

Public law
-

Private law

Administrative law

- Civil law
o

Contract law or law of obligations

Law of torts

Constitutional law

- Labour law

Criminal law

- Commercial law

o Felony

- Corporations law

o Misdemeanors

- Property law
-

Family law

Public Law
Public law is a theory of law governing the relationship between individuals (citizens,
companies) and the state. Constitutional law deals with the relationship between the state and
individual, and the relationships between different branches of the state, such as the executive,
the legislative and the judiciary. In most legal systems, these relationships are specified within
a written constitutional document. It refers to the body of law which regulates bureaucratic
managerial procedures and defines the powers of administrative agencies.
These laws are enforced by the executive branch of a government rather than the
judicial or legislative branches (if they are different in that particular jurisdiction). This body
of law regulates international trade, manufacturing, pollution, taxation, and the like. This is
sometimes seen as a subcategory of Civil law and sometimes seen as public law as it deals
with regulation and public institutions.
All public laws must be enforced by some aspect of government interference or
intrusion. In this sense, they are distinct from private laws in which one individual brings a
lawsuit against another. Private laws are enforced by litigation, while public laws are enforced
by law enforcement. Public laws include Constitutional law, criminal law, and
administrative law. The Constitution grants rights to individuals, but also vests them with a
responsibility not to do harm to others.
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1. Administrative law

Administrative law is the body of law that governs the activities of administrative

agencies of government. Government agency actions can include rulemaking, adjudication, or

the enforcement of a specific regulatory agenda. Administrative law is considered as a branch
of public law. As a body of law, administrative law deals with the decision-making of
administrative units of government. Administrative law expanded greatly during the twentieth
century, as legislative bodies worldwide created more government agencies to regulate the
increasingly complex social, economic and political spheres of human interaction.
For example tribunals, boards or commissions those are part of a national regulatory
scheme in such areas as police law, international trade, manufacturing, the environment,
taxation, broadcasting, immigration and transport.
2. Constitution law
Constitutional law is a body of law dealing with the distribution and exercise of
government power. Constitutional laws may often be considered second order rulemaking or
rules about making rules to exercise power. It governs the relationships between the judiciary,
the legislature and the executive with the bodies under its authority. One of the key tasks of
constitutions within this context is to indicate hierarchies and relationships of power.
For example, in a unitary state, the constitution will vest ultimate authority in one
central administration and legislature, and judiciary, though there is often a delegation of
power or authority to local or municipal authorities. When a constitution establishes a federal
state, it will identify the several levels of government coexisting with exclusive or shared areas
of jurisdiction over lawmaking, application and enforcement.
3. Criminal law
Criminal laws are also public laws. Criminal laws are laws that are made in order to
create an ordered society. If a person violates a criminal law, although their victim is another
individual, that person still violates the public law of society. Criminal law, or penal law, is the
body of law that relates to crime. It might be defined as the body of rules that defines conduct
that is prohibited by the state because it is held to threaten, harm or otherwise endanger the
safety and welfare of the public, and that sets out the punishment to be imposed on those who
12

breach these laws. Criminal law is to be distinguished from civil law. Indian Criminal Laws
are divided into three major acts i.e. Indian Penal Code, 1860, Code of Criminal Procedure,
1973 and Indian Evidence Act, 1872. Instead of their laws special Criminal Laws are also
passed by Indian Parliament i.e. NDPS, Prevention of Corruption Act, Food Adulteration Act,
dowry prevention act, Commission of Sati Act etc. thousands of minor laws are made in India.
i.

Offences against persons

The Offences against the Person Act 1861 is an Act of the Parliament of the United

Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against
the person (an expression which, in particular, includes offences of violence) from a number of
earlier statutes into a single Act. For the most part these provisions were, according to the
draftsman of the Act, incorporated with little or no variation in their phraseology. It is one of a
group of Acts sometimes referred to as the criminal law consolidation Acts 1861. It was
passed with the object of simplifying the law. It is essentially a revised version of an earlier
consolidation Act, the Offences against the Person Act 1828 (and the equivalent Irish Act),
incorporating subsequent statutes.
(i)

Offences against property

Crime against property is any criminal act that destroys another's property, or that

deprives an owner of property against the owner's will. The criminal law generally considers
these crimes less serious than violent crimes, or crimes against persons, but they can still
constitute very serious felony charges. Arson and vandalism are examples of crimes that
destroy another's property. Examples of crimes that unwillingly deprive an owner of property
are far more abundant, including larceny, embezzlement, receiving stolen goods, extortion
(blackmail), robbery (a combination of violent crime and crime against property), burglary,
and industrial espionage, to name just a few.
For Example:

The Nurse Practice Act does not give the nurse the authority to diagnose disease and
prescribe medication, regardless of the situation. The medical practice Act and the Nurse
practice Act on Advanced Nursing Practice contain this authorization. To give a
medication without an order is a violation of the law and is a crime, even though the client
may not be harmed. Violations of laws related to the care and distribution of controlled
13

substances is also a crime. Altering or changing narcotic records is a crime even if no

diversion of drugs occurred. While finding where the error in a narcotic record occurred
may be a tedious and time-consuming process, as a nurse, need to look beyond temporary
convenience to the potential consequences of action.

Criminal offenses include stealing, assault, illegal drug use, etc.

Types of criminal law are:

Felony
A felony is a crime punishable by death or by imprisonment in a state or federal prison

for more than one year. A felony is generally considered a crime of high seriousness. A person
convicted in a court of law of a felony crime is known as a felon. It represents a more serious
violation of the law, and carries heavier fines and longer periods of imprisonment, perhaps
even death.
Felonies include but are not limited to the following:

Murder

Practicing medicine without a license

Aggravated assault and/or battery

Manslaughter

Vehicular homicide

Arson

Burglary

Tax evasion

Various forms of fraud

The manufacture, sale, distribution, or possession with intent to distribute of certain

types and/or quantities of illegal drugs

In some states, the simple possession (possession without intent to distribute, e.g., for
personal use) of certain types of illegal drugs, usually in more than a certain quantity
but regardless of quantity for some drugs in some jurisdictions (such as Virginia for
cocaine and heroin)

Grand larceny or grand theft, i.e., larceny or theft above a certain statutorily
established value or quantity of goods
14

Vandalism on federal property.

Treason

Kidnapping

Obstruction of justice

Perjury

Cheque fraud

Copyright infringement

Child pornography

Mail and wire fraud

Violating parole, probation, or recognizance bond

Threatening an official (police officer, judge)

Misdemeanors
Misdemeanors are less serious crimes punishable by fines or by imprisonment in

facility other than a prison for one year or less. It is a lesser criminal act that is less severe than
a felony and more severe than a regulatory offense. Being arrested for a misdemeanor may not
mean a lengthy prison sentence, but it can seriously affect job prospects and certain civil
privileges.
For example:

A school bus driver that gets his or her first DUI may be illegible for future licensing.

Public intoxication is a misdemeanor. Public intoxication generally involves intoxicated

individuals causing a disturbance in a private or public area. Intoxication can be caused by
alcohol or drugs.

Simple assault is a common example of a misdemeanor. Simple assault on police officers,

elected officials and social workers are felonies, an exception to most simple assault laws.
An example of simple assault can be attempting to cause someone physical harm or
simply invading someone's personal space.

Private law
Private law is that part of a civil law legal system which is part of the jus commune
that involves relationships between individuals. It is to be distinguished from public law,
15

which deals with relationships between both natural and artificial persons (i.e., organizations)
and the state, including regulatory statutes, penal law and other law that affects the public
order. In general terms, private law involves interactions between private citizens, whereas
public law involves interrelations between the state and the general population. The concept of
private law in common law countries are little broader, in that it also encompasses private
relationships between governments and private individuals or other entities. That is,
relationships between governments and individuals based on the law of contract or torts are
governed by private law, and are not considered to be within the scope of public law.
Types of private law

Civil law
o

Contract law or law of obligations

Law of torts

Labour law

Commercial law

Corporations law

Property law

Family law

1. Industrial law/ Labor Law

Labor law (also called labour law or employment law) is the body of laws,
administrative rulings, and precedents which address the legal rights of, and restrictions on,
working people and their organizations. As such, it mediates many aspects of the relationship
between trade unions, employers and employees. In most countries however, no such
distinction is made. However, there are two broad categories of labor law. First, collective
labor law relates to the tripartite relationship between employee, employer and union. Second,
individual labor law concerns employees' rights at work and through the contract for work.
The labor movement has been instrumental in the enacting of laws protecting labor rights in
the 19th and 20th centuries. Labor rights have been integral to the social and economic
development since the Industrial Revolution.
Indian labor law refers to laws regulating employment in India. There are over fifty
national laws and many more state-level laws. Traditionally Indian governments at federal and
16

state level have sought to ensure a high degree of protection for workers. So for instance, a
permanent worker can be terminated only for proven misconduct or for habitual absence.
a) Collective labor law

The Industrial Disputes Act (1947) requires companies employing more than 100
workers to seek government approval before they can fire employees or close down.
In practice, permissions for firing employees are rarely granted.

Trade Unions Act 1926

Provisions of the Factories Act, 1948

b) Individual labor law

All India Organization of Employers points out that there are more than 55 central
labour laws and over 100 state labour laws.

The Contract Labor Act (1970) prohibits companies from hiring temporary workers.
Women are not permitted to work night shifts.

Minimum Wages Act 1948

Weekly Holidays Act 1942

Beedi and Cigar Workers Act 1966

The Payment of Wages Act, 1936

The Workmens Compensation Act, 1923

The Factories Act, 1948

2. Taxation and revenue law

Indian tax law is an extremely complex body of law, with several different taxes levied
by different governments. A tax is a financial charge or other levy imposed upon a taxpayer
(an individual or legal entity) by a state or the functional equivalent of a state such that failure
to pay, or evasion of or resistance to collection, is punishable by law. Taxes are also imposed
by many administrative divisions. Taxes consist of direct or indirect taxes and may be paid in
money or as its labour equivalent. Income Tax is levied by the Central Government under the
Income Tax Act, 1961. Customs and excise duties are also levied by the Central government.
Sales tax is levied under VAT legislations at the state level.

17

Income Tax Act of 1961

The major tax enactment in India is the Income Tax Act of 1961 passed by the
Parliament, which imposes a tax on income of individuals and corporations. This Act imposes
a tax on income under the following five heads:

Income from house and property,

Income from business and profession,

Income from salaries,

Income in the form of Capital gains, and

Income from other source

For example:

The DVLA (Driver and Vehicle Licensing Agency) collects vehicle excise duty,
which is then passed onto the treasury of the respected state/ country.

The un-accounted money in the private hospitals can be taken by the income tax
officers under tax law.

3. Company law
Corporate law (also "company" or "corporations" law) is the study of how
shareholders, directors, employees, creditors, and other stakeholders such as consumers, the
community and the environment interact with one another under the internal rules of the firm.
Corporate law is a part of a broader companys law (or law of business associations). Other
types of business associations can include partnerships, or trusts (like a pension fund), or
companies limited by guarantee (like some universities or charities). Corporate law is about
big business, which has separate legal personality, with limited liability or unlimited liability
for its members or shareholders, who buy and sell their stocks depending on the performance
of the board of directors. It deals with the firms that are incorporated or registered under the
corporate or company law of a sovereign state or their sub national states. The four defining
characteristics of the modern corporation are:

Separate Legal Personality of the corporation (the right to sue and be sued in its own
name i.e. the law treats the company as a human being)

18

Limited Liability of the shareholders (so that when the company is insolvent, they
only owe the money that they subscribed for in shares)

Shares (usually on a stock exchange)

4. Equity law
Equity is a body of rules, the primary source of which was neither custom nor written law
but the imperative details of conscience and which had been set forth and developed in the
Court of Chancery. - Henry Levery Ulman
In India the common law doctrine of equity had traditionally been followed even after it
became independent in 1947. However in 1963 the "Specific Relief Act" was passed by the
Parliament of India following the recommendation of the Law Commission of India and
repealing the earlier "Specific Relief Act" of 1877. Under the 1963 Act, most equitable
concepts were codified and made statutory rights, thereby ending the discretionary role of the
courts to grant equitable reliefs. The rights codified under the 1963 Act were as under:

Recovery of possession of immovable property

Specific performance of contracts

Rectification of Instruments

Recession of Contracts

Cancellation of Instruments

Declaratory Decrees

Injunctions
With this codification, the nature and tenure of the equitable reliefs available earlier

have been modified to make them statutory rights and are also required to be pleaded
specifically to be enforced. Further to the extent that these equitable reliefs have been codified
into rights, they are no longer discretionary upon the courts or as the English law,
"Chancellor's foot" but instead are enforceable rights subject to the conditions under the 1963
Act being satisfied.
5. Family law
Family law is an area of the law that deals with family-related issues and domestic
relations including:
19

The nature of marriage, civil unions, and domestic partnerships;

Issues arising throughout marriage, including spousal abuse, legitimacy, adoption,

surrogacy, child abuse, and child abduction

The termination of the relationship and ancillary matters including divorce,

annulment, property settlements, alimony, and parental responsibility orders (in the
united states, child custody and visitation, child support and alimony awards).

Paternity fraud and testing

6. Property law
Property often is protected by the criminal law. Trespassing is unlawful entry onto the
real property of another. Many criminal codes provide penalties for conversion,
embezzlement, theft, all of which involve deprivations of the value of the property. Robbery is
a theft by force.
7. Trust Law
Trust law in India is mainly codified in the Indian Trusts Act of 1882, which came into
force on March 1, 1882. It extends to the whole of India except for the state of Jammu and
Kashmir and Andaman and Nicobar Islands. Indian law follows principles of English law in
most areas of law, but the law of trusts is a notable exception. Indian law does not recognize
"double ownership", and a beneficiary of trust property is not the equitable owner of the
property in Indian law.
8. Commercial law
Commercial law, also known as business law, is the body of law that applies to the
rights, relations, and conduct of persons and businesses engaged in commerce, merchandising,
trade, and sales. It is often considered to be a branch of civil law and deals with issues of both
private law and public law.
For example: Carriage by land and sea; merchant shipping; guarantee; marine, fire, life,
and accident insurance; bills of exchange and partnership.

20

9. Civil law
Civil law is the legal system used in most countries around the world today. Civil law
codifications are closely based on Roman law, alongside some influences from religious laws
such as Canon law, continued to spread throughout Europe until the Enlightenment. It can be
classified as:
-

Tort law

- Contract.

Tort law
The word 'tort' is derived from French word of the same spelling which means
"mischief, injury, wrong, or calamity", from the Latin tortus, meaning twisted. A tort, in
common law jurisdictions, is a wrong that involves a breach of a civil duty (other than a
contractual duty) owed to someone else. It is differentiated from a crime, which involves a
breach of a duty owed to society in general. Though many acts are both torts and crimes,
prosecutions for crime are mostly the responsibility of the state, private prosecutions being
rarely used; whereas any party who has been injured may bring a lawsuit for tort. It is also
differentiated from equity, in which a petitioner complains of a violation of some right. One
who commits a tortious act is called a tortfeasor. The equivalent of tort in civil law
jurisdictions is delict.
Tort may be defined as a personal injury; or as "a civil action other than a breach of
contract." A person who suffers a tortious injury is entitled to receive "damages", usually
monetary compensation, from the person or people responsible or liable for those injuries. Tort
law defines what a legal injury is and, therefore, whether a person may be held liable for an
injury they have caused. Legal injuries are not limited to physical injuries. They may also
include emotional, economic, or reputational injuries as well as violations of privacy, property,
or constitutional rights. Tort cases therefore comprise such varied topics as auto accidents,
false imprisonment, defamation, product liability (for defective consumer products), copyright
infringement, and environmental pollution (toxic torts), among many others.

21

Theoretical Perspectives on Tort Law

Analytical and Normative

Analytical theories seek to interpret and explain tort law. More specifically, they aim

(i) to identify the concepts that figure centrally in tort's substantive norms and structural
features (the latter being the procedures and mechanisms by which the institution of tort law
enforces its substantive norms) and (ii) to explain how tort's substantive norms and structural
features are related. Key substantive norms include the rules of strict liability and fault
liability. Key structural features include the fact that tort suits are brought by the victim rather
than by the state and the fact that such suits are bilateral: victims (plaintiffs) sue their
putative injurers instead of drawing on a common pool of resources.
Normative theories seek to justify or reform tort law. Justificatory theories aim to
provide tort with a normative grounding, often by defending the values tort embodies or the
goals it aims to achieve. Reformist theories seek to improve tort law by recommending
changes that would bring the institution closer in line with its core values or would help it do a
better job of achieving its goals.
The distinction between analytical and normative theories is not exclusive. On the
contrary, few analytical theories are altogether devoid of normative elements and no normative
theory is ever devoid of analytical elements.

Instrumental and Non-Instrumental

Instrumental theories regard tort's essential features as explicable in terms of an

overarching purpose, typically, the remediation of some social problem, such as the problem
of allocating the costs of life's misfortunes. These theories do not always agree on the specific
principles that govern (or ought to govern) the allocation of costs. This is in part because they
disagree about the further purposes that tort serves (or ought to serve) in allocating costs.
Some theorists believe that tort aims (or ought to aim) at allocating costs efficiently. Others
believe that tort aims (or ought to aim) at allocating costs fairly. Both sorts of theorist treat tort
instrumentally, as a tool for solving a social problem.

22

Non-instrumental theorists do not see tort primarily as responding to a social

problem. They believe that tort is better understood as a way of giving expression to certain
moral or political principles.
Instrumental theorists typically identify tort's central concepts as accidents, costs, and
allocation. Non-instrumental theorists typically identify tort's central concepts as rights,
wrongs, and redress.

Corrective Justice
Corrective justice theory the most influential non-economic perspective on tort law

understands tort law as embodying a system of first- and second-order duties. Duties of the
first order are duties not to injure. These duties establish norms of conduct. Duties of the
second order are duties of repair. These duties arise upon the breach of first-order duties. That
second-order duties so arise follow from the principle of corrective justice, which says that an
individual has a duty to repair the wrongful losses that his conduct causes. For a loss to be
wrongful in the relevant sense, it need not be one for which the wrongdoer is morally to blame.
It need only be a loss incident to the violation of the victim's right not to be injured a right
correlative to the wrongdoer's first-order duty not to injure.
4. Retributive Justice
Many theorists believe that a principle of retributive justice says, that the
blameworthy deserve to suffer does a good job of interpreting and justifying criminal law.
Yet most theorists think that such a principle does a rather poor job of interpreting and
justifying tort law (except, perhaps, for the part of tort law concerned with punitive damages).
First, the concept of responsibility at play in tort law is that of outcome responsibility, not
moral responsibility. Tort asks whether a given loss is something that the defendant in some
sense owns. It does not ask whether the defendant's action is something for which he is
morally to blame. Second, the duty of repair in tort is in essence a debt of repayment. Like
other debts of repayment, it can be paid by third parties and not just when the creditor (the
plaintiff) has authorized repayment. By contrast, debts incurred as a result of criminal
mischief can never be paid by third parties.

23

5. Civill Recourse Theory

Civil recoursse theory aggrees with coorrective ju
ustice theoryy that tort's nnormative structure
s
involves a variety of first-ordder duties, duties thatt establish norms of conduct. Yet
Y civil
recourse theory takkes a very different
d
view of the legal
l
conseequence of a first-ordeer duty's
breach. Civil recourse theoryy has substaantial explaanatory pow
wer. Perhapps most obv
vious, it
explains why tort suuits have a bilateral strructure why
w the vicctim of a toortious wron
ng seeks
redress from
f
the wrrongdoer heerself insteadd of drawin
ng on a com
mmon pool oof resourcess. It also
explains why tort suuits are privvately proseccuted wh
hy the state does not acct of its own
n accord
to imposse liability on
o those whho breach first-order
f
duties.
d
Accoording to civvil recoursee theory,
the breacch of a firstt-order dutyy gives rise not to a leg
gal duty butt to a legal ppower, a po
ower the
victim caan choose not
n to exerciise.
Categoriies of torts
Torrts may be categorized in a num
mber of way
ys: one succh way is to divide th
hem into
Negligennce, Intentioonal Torts, and
a Quasi-T
Torts.

24

1. Unintentional Tort
Unintentional tort leads to injury, property damage or financial loss. In the event of an
unintentional tort, the person who caused the accident did so inadvertently and typically
because he or she was not being careful. The person who caused the accident is considered
negligent because he or she failed to exercise the same degree of care that a reasonable person
would have in the same situation. It can be classified into:

Negligence

Malpractice

a) Negligence
The standard action in tort is negligence. Negligence is a tort which depends on the
existence of a breaking of the duty of care owed by one person to another. The tort of
negligence provides a cause of action leading to damages, or to relief, in each case designed to
protect legal rights, including those of personal safety, property, and, in some cases, intangible
economic interests. Negligence actions include claims coming primarily from car accidents
and personal injury accidents of many kinds, including clinical negligence, worker's
negligence and so forth. Product liability cases, such as those involving warranties, may also
be considered negligence actions, but there is frequently a significant overlay of additional
lawful content.
Example: One well-known case is Donoghue v Stevenson where Mrs. Donoghue
consumed part of a drink containing a decomposed snail while in a public bar in Paisley,
Scotland and claimed that it had made her ill. The snail had not been visible, as the bottle of
beer in which it was contained was opaque. Neither the friend who bought the bottle for her,
nor the shopkeeper who sold it, were aware of the snail's presence. The manufacturer was Mr.
Stevenson, whom Mrs. Donoghue sued for damages for negligence. She could not sue Mr.
Stevenson for damages for breach of contract because there was no contract between them.
The majority of the members of the House of Lords agreed (3:2 ratio) that Mrs. Donoghue had
a valid claim, but disagreed as to why such a claim should exist. Lord MacMillan thought this
should be treated as a new product liability case. Lord Atkin argued that the law should
recognise a unifying principle that we owe a duty of reasonable care to our neighbors. He

25

quoted the Bible in support of his argument, specifically the general principle that "thou shalt
love thy neighbor."
Negligence is a breach of legal duty to take care resulting in damage to the plaintiff.
This definition of negligence can be divided into four component parts that the plaintiff must
prove to establish negligence. The legal burden of proving these elements falls upon the
plaintiff.
Elements in determining the liability for negligence:
The elements in determining the liability for negligence are:

The plaintiff was owed a Duty of care

There was a Dereliction or breach of that duty

The tortfeasor directly caused the injury.

The plaintiff suffered Damage as a result of that breach

The damage was not too remote; there was proximate cause.
The first element of negligence is the legal duty of care. This concerns the relationship

between the defendant and the plaintiff, which must be such that there is an obligation upon
the defendant to take proper care to avoid causing injury to the plaintiff in all the
circumstances of the case. There are two ways in which a duty of care may be established:

The defendant and plaintiff are within one of the 'special relationship'; or

Outside of these relationships, according to the principles developed by case law.

There are a number of situations in which the courts recognize the existence of a duty of

care. These usually arise as a result of some sort of special relationship between the parties.
Examples include one road-user to another, employer to employee, manufacturer to consumer,
doctor to patient and solicitor to client.
Types of Negligence

Professional negligence

Criminal negligence

1. Professional Negligence
26

In India, health care professionals or medical doctors must have reasonable skills,
knowledge, and proper medical education and competence to carry on the practice of
medicine. If they fail in the criteria as narrated then they will be liable for incompetence in one
way or the other and may face:
(1) Liability in respect of diagnosis;
(2) Liability in relation to doctors duty to warn the patient about the risks involved.
(3) Liability in relation to the treatment to be carried out.

The cases of negligence in India are directly related to existing facilities, infrastructure
and level of acumen of medical professionals. In many cases nurses have been held liable for
negligent acts, such as

Example:

Carelessly failing to lock the brakes on a wheelchair before transferring a client

Leaving an infant on an examinations table without taking steps to prevent falling

Failing to take the temperature of a client who complains of feeling warm and
lethargic

Verification of Professional Negligence:

First, a standard of care must have been established that outlines the level or degree of
quality considered adequate by a given profession. Standards of care outline the duties a
defendant has to plaintiff, or a nurse to patient. These standards represent the skills and
learning commonly possessed by members of the profession and generally is the minimal
requirements that define an acceptable level of care. Standards of care, which guarantee
patients safe nursing care, include organizational policy and procedure statements, job
descriptions, and student guidelines. Guidelines for standards of care are shown.

Second, after the standard of care has been established, it must be shown that the
standard was violated- there must have been a breach of duty. This breach is shown by calling
other nurses who practice in the same specialty area as the defendant to testify as expert
witnesses.

27

Third, the nurse must have had the knowledge or availability of information that not
meeting the standard of care could result in harm. This is called foresee ability of harm. If the
average, reasonable person in the defendants position could have anticipated the plaintiffs
injury as a result of his or her actions, then the plaintiffs injury was foresee able. Being
ignorant is not a justifiable excuse, but by conducting investigations and hearings to ensure the
laws enforcement. Administrative laws are valid only to the extent that they are within the
scope of the authority granted to them by legislative body.

The fourth source of law is court decisions. Judicial laws are made by the courts to
interpret legal issues that are in dispute. Depending on the type of court involved, judicial or
decisional law may be made by a single justice, with or without a jury, or by a panel of justices.
Generally, initial trial courts have a single judge or magistrate, intermediary appeal courts have
three justices, and the highest appeal courts have nine justices.

Components of professional negligence:

Elements of liability

Explanation

Example: Giving
Medications

1.Duty to use due

The care that should be

A nurse should give

care(defined by the

given under the

medications accurately,

standard of care)

circumstances(what the

completely, and on time

reasonably prudent nurse

would have done
A nurse fails to give
2.Failure to meet

Not giving the care that

medications accurately,

standard of care(breach

should be given under

completely, or on time.

of duty)

circumstances
The drug handbook

3.Forseeability of harm

The nurse must have

specifies that the wrong

reasonable access to

dosage or route may

information about

cause injury.

whether the possibility of

harm exists
Wrong dosage causes

28

4.A direct relationship

Patient is harmed because

patient to have a

between failure to meet

proper care is not given

convulsion.

Actual harm results to

Convulsion or other

patient

serious complication

the standard of
care(breach)and injury
can be proved

5.Injury

occurs.

2. Criminal negligence
These are the situations in which the actions of the professional fall outside the bounds
of simple error and reflect a serious lack of concern or attention to the safety of the patient.
Errors resulting in the serious injury or death of a patient are investigated and may be
prosecuted and tried by the criminal courts. A license to practice nursing may be temporarily
withdrawn while such changes are investigated and tried. If the individual is found innocent,
the license then may be restored. If the individual is convicted of the crime, the nursing license
may be revoked, in addition to sentencing and other penalties.
For Example:
In the state of Colorado, Criminal Charges were brought against three nurses for
negligent actions that resulted in the death of an infant. Through a series of actions by the
nurses, the infant was given a 10- fold overdose of (IV) Intravenous penicillin. This case
clearly shows that the state has the power to prosecute as a crime professional conduct that
results in serious harm or death. Nurses who commit felonies such as theft, abuse, or deliberate
harm to a patient are always charged under both criminal laws and the laws regulating nursing
practice. Nurses who commit felonies outside of the care setting can be prosecuted under
criminal law and under the law regulating nursing practice if the felony reflects on their fitness
to practice norm.

(b) Malpractice
Malpractice is a term used for a specific type of negligence. It refers to the negligence
of a specially trained or educated person in the performance of his her job. Therefore,
malpractice is the term used to describe negligence by nurses in the performance of their

29

duties. The professional person must have had a professional duty toward the person receiving
the care.
For example,

Failure to meet the standards of acceptable care which results in harm to another
person.

Doing or Saying Nothing When Action Is Required

Injuring a Patient With Equipment

Improper Administration of Medication

Essential elements of malpractice:

Harm to an individual.
Duty of professional personnel towards an individual.
Breach of duty by the professional.
Breach of duty by the cause of harm.

Factors that contribute to malpractice claims:

A suit usually does not always follow the poor results or harm that may on occasion
occur in the course of nursing practice. Understandings of the factors that involve in
malpractice are:
Social factors:
Health care is big business, and patients complain increasing of not being accepted and
respected as individuals. Patients are more willing to bring suit against someone who is part of
a large, impersonal system. Health costs are high and some people think hospitals and
physicians have the ability to pay large settlements, whether directly or through insurance. If a
patients own income is lessened or disrupted by an illness, he or she might bring suit as a
solution to economic difficulties. Increased public awareness of the size of monetary
judgments that have been awarded may also be an economic incentive to initiating a suit.
Suit- prone patients:
Some people are more likely to bring suit, for real or imagined errors. If these people are
recognized as being suit- prone patients, it is possible for nurse to protect herself through
increased vigilance regarding care and thorough record- keeping. Suit- Prone patients usually
are identified by over behavior in which they are persistent fault-finders and critics of
30

personnel and of all aspects of care. They may be uncooperative in following a plan of care
and sensitive to any perceived slight.
Suit-prone nurses:
Nurses may also be suit-prone. Nurses who are insensitive to the patients complaints,
who do not identify and meet the patients emotional needs, or who fail to recognize and
accept the limits of their own practice may contribute to suite instituted not only against the
nurse but also against the employer and the physician. The nurses self-awareness is critical in
preventing suits.
Categories of negligence that result in malpractice:
1. Failure to follow standards of care, including failure to

Perform a complete admission assessment or design a plan of care.

Adhere to standardized protocols or institutional policies and procedures.

[E.g.: Using an improper injection site].

Follow a physician's verbal or written order.

2. Failure to use equipment in a responsible manner, including failure to

Follow the manufacturer's recommendations for operating the equipment.

Check equipment for safety prior to use.

Place equipment properly during treatment.

Learn how equipment functions.

3. Failure to communicate, including failure to

Notifying a physician in a timely manner when conditions warrant it.

Listen to clients complaints and act on them.

Communicate effectively with client. [E.g.: Inadequate or ineffective communication

of discharge instructions]

Seek higher medical authorization for a treatment.

4. Failure to document, including failure to note in points medical record

A client's progress and response to treatment.

A client's injuries.

Pertinent nursing assessment information [E.g.: Drug Allergies].

31

A physician's medical orders.

Inform on telephone conversations and physicians, including time, content of

communication between nurses and physician, and actions taken.

5. Failure to assess and monitor, including failure to

Complete a shift assessment.

Implement a plan of care.

Observe clients ongoing progress.

Interpret a client's signs and symptoms.

6. Failure to act as a point advocate, including failure to

Question discharge orders when a client's condition warrants it.

Question incomplete or illegible medical orders.

Provide a safe environment.

Preventing malpractice claims:

The most significant thing can do to prevent malpractice claims is to maintain a high
standard of care. To do this, nurse must work at improving own nursing practice and also the
general climate for nursing practice where can work. The ways to prevent malpractice is:

A) Self -awareness:
Identify strengths and weaknesses in practice.
Be ready to acknowledge limitations to supervisors
Do not accept responsibilities for which not prepared.
Example: the nurse who has not worked in pediatrics ward for 10 years and accepts an
assignment to a pediatric unit without orientation and education is setting the stage for an
error to occur. The standard of care does not change for an inexperienced nurse.

B) Adapting proposed assignments:

Nurses may find themselves assigned to units where they have little or no
experience with the types of patient problems they will encounter. It is reasonable to be
assigned to assist an overworked nurse in a special area if can assume duties that are

32

within own competence, and allow the specialized nurse to assume the specialized duties.
It is not reasonable or safe for nurses to be expected to assume the specialized duties.
For example: if a nurses is not prepared for coronary care, she might of to that unit,
monitor the IV lines, take vital signs, and make observations to report to the experienced
coronary care nurse; the experienced nurse they would be able to check the monitors,
administer the specialized medications, and make decisions. Note that this does fragment
the patient's care, and would not be appropriate as a permanent solution, but could
alleviate a temporary problem in a safe manner.

C) Following policies and procedures:

It is nurses responsibility to be aware of the policies and procedures of the
institution that employs. If they are sound, they can be an adequate defense against a
claim, providing they were carefully followed.
For example, the medication procedure may involve checking all medications against a
central medication Kardex. If nurses do this and there is an error in the Kardex, she might
not be liable for the resulting medication error because she followed all appropriate
procedures and acted responsibility. The liability would rest with the person who made
the error in transcribing the medication from the physician's orders to the Kardex. If,
however, nurse had not followed procedure in checking, she might also be liable because
she did not do any part in preventing error.

D) Changing policies and procedures:

As Nursing evolves, changes are needed in policies, procedures, and protocols.
Part of our responsibility as a professional is to work towards keeping these up to date
information. Often facilities that are reluctant to make changes based on the suggestions
of individual nurses are much more receptive to new ideas when the legal implications of
outmoded practice are noted. References such as the guidelines produced by the Agency
for Health Care Policy and Research (AHCPR) and articles with research results may
provide strong support for needed changes in practice.

E) Documentation:
Nurses' records are unique in the health care setting. They cover the entire period of
hospitalization, 24hours a day in a sequential pattern. The record can be the crucial factor
avoiding litigation. Documentation is the record of observations made, decisions reached,
33

actions taken, and jute evaluation of the patient's response are considered much more
solid evidence than verbal, testimony, which depends on one's memory.
Clear documentation of a relevant data is important.
For legal purposes, observations and actions that are not recorded may be assumed not
to have occurred.
It needs to be factual, legible and clearly understandable. Only approved
abbreviations should be used.
Narrative should have clear statements, and errors should be corrected according to
the policy of the facility.
Liquid erasing fluid, erasures and heavy crossing out may be interpreted as attempted
fraud in record keeping.
Avoid any statement that implies negligence on the part of any health care provider.
Aware that their notes protect not only themselves but often other members of the
health care team and the facility.
Records might include a complete log of telephone calls to a physician and
consultation with any relevant supervisor.
2. Intentional torts
Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to
an individual, and that do so. Intentional torts have several subcategories, including torts
against the person, including assault, battery, false imprisonment, intentional infliction of
emotional distress, and fraud. Property torts involve any intentional interference with the
property rights of the claimant (plaintiff). Those commonly recognized include trespass to
land, trespass to chattels (personal property), and conversion.
An intentional tort is any deliberate interference with a legally recognized interest, such
as the rights to bodily integrity, emotional tranquility, dominion over property, seclusion from
public scrutiny, and freedom from confinement or deception. These interests are violated by
the intentional torts of assault, Battery, trespass, False Imprisonment, invasion of privacy,
conversion, Misrepresentation, and Fraud. The intent element of these torts is satisfied when
the tortfeasor acts with the desire to bring about harmful consequences and is substantially
certain that such consequences will follow. Mere reckless behavior, sometimes called willful
and wanton behavior, does not rise to the level of an intentional tort.
34

For example:
A hospital was sued for battery after a coronary care nurse resuscitated a client who had
expressed wishes not to be resuscitated.
A client in radiology sued for battery when the nurse intentionally gave a sedative that the
client had specifically refused, and the client experienced a severe allergic reaction.
The nurse who proceeds with an injection despite a client's objection could be guilty of
battery.
Types of intentional torts:
The types of intentional tort are classified as:

Assault

Battery

Invasion of privacy

False imprisonment

Defamation9 Libel
9 Slander

1. Trespass law
Trespass is an area of tort law broadly divided into three groups:
Trespass to the person
Trespass to chattels
Trespass to land.
Trespass to the person, historically involved six separate trespasses: threats, assault,
battery, wounding, mayhem, and maiming. Through the evolution of the common law in
various jurisdictions, and the codification of common law torts, most jurisdictions now broadly
recognize three trespasses to the person: assault, which is "any act of such a nature as to excite
an apprehension of battery"; battery, "any intentional and unpermitted contact with the
plaintiff's person or anything attached to it and practically identified with it"; and false
35

imprisonment, the "unlawful, obstruction or deprivation of freedom from restraint of

movement." So the types of intentional tort can be explained with trespass law.
Trespass to the person
Under English decision, Letang v Cooper says that intent is required to sustain a
trespass to the person cause of action; in the absence of intent, negligence is the appropriate
tort. In other jurisdictions, gross negligence is sufficient to sustain a trespass to the person,
such as when a defendant negligently operates an automobile and strikes the plaintiff with
great force. "Intent is to be presumed from the act itself." Generally, trespass to the person
consists of three torts: assault, battery, and false imprisonment.
(a)Assault
An assault is carried out by a threat of bodily harm coupled with an apparent, present
ability to cause the harm. It is both a crime and a tort and, therefore, may result in either
criminal and/or civil liability. The term is often confused with battery, which involves physical
contact. The specific meaning of assault varies between countries, but can refer to an act that
causes another to apprehend immediate and personal violence, or in the more limited sense of
a threat of violence caused by an immediate show of force. Some jurisdictions have
incorporated the definition of civil assault into the definition of the crime making it a criminal
assault intentionally to cause another person to apprehend a harmful or offensive contact.
Section 351 in the Indian Penal Code
351. AssaultWhoever makes any gesture, or any preparation intending or knowing it
to be likely that such gesture or preparation will cause any person present to apprehend that he
who makes that gesture or preparation is about to use criminal force to that person, is said to
commit an assault. Explanation.Mere words do not amount to an assault. But the words
which a person uses may give to his gestures or preparation such a meaning as may make
those gestures or preparations amount to an assault.
Examples:
(a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to
believe that A is about to strike Z, A has committed an assault.

36

(b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely
that he may thereby cause Z to believe that he is about to cause the dog to attack Z. A has
committed an assault upon Z.
(c) A takes up a stick, saying to Z, I will give you a beating. Here, though the words used
by A could in no case amount to an assault, and though the mere gesture, unaccompanied by
any other circumstances, might not amount to an assault, the gesture explained by the words
may amount to an assault.
(b) Battery
Battery is "any intentional and unpermitted contact with the plaintiff's person or
anything attached to it and practically identified with it". The elements of battery common law
vary by jurisdiction. An act which, directly or indirectly, is the legal cause of a harmful contact
with another's person makes the actor liable to the other, if:
(a) The act is done with the intention of bringing about a harmful or offensive contact or an
apprehension thereof to the other or a third person.
(b) Contact is not consented to by the other or the other's consent there to is procured by
fraud or duress.
(c) The contact is not otherwise privileged.
Battery torts under Commonwealth precedent are subjected to a four point test to determine
liability:
1. Directness: Is the sequence of events connecting initial conduct and the harmful
contact an unbroken series?
2. Intentional Act: Was the harmful contact the conscious object of the defendant? Did
the defendant intend to cause the resulting harm? Though the necessity of intent
remains an integral part of Commonwealth battery, some Commonwealth
jurisdictions have moved toward the American jurisprudence of "substantial
certainty." If a reasonable person in the defendant's position would apprehend the
substantial certainty of the consequences of his actions, whether the defendant
intended to inflict the injuries is immaterial.

37

3. Bodily Contact: Was there active (as opposed to passive) contact between the bodies
of the plaintiff and the defendant?
4. Consent: Did the plaintiff consent to the harmful contact? The onus is on the
defendant to establish sufficient and effective consent.
For Example:

Playing a joke on a person that involves offensive contact.

Performing surgery on the incorrect portion of a person's body

Throwing an object at a person

Poisoning a person's drink.

(c) False imprisonment

False imprisonment is defined as "unlawful obstruction or deprivation of freedom from
restraint of movement." In some jurisdictions, false imprisonment is a tort of strict liability: no
intention on the behalf of the defendant is needed, but others require intent to cause the
confinement. Physical force, however, is not a necessary element, and confinement needn't be
lengthy; the restraint must be complete, though the defendant needn't resist.
Conveniently, the American Law Institute's Restatement (Second) of Torts distills false
imprisonment liability analysis into a four-prong test:
1. The defendant intends to confine the plaintiff. (This is not necessary in
Commonwealth jurisdictions.)
2. The plaintiff is conscious of the confinement. (Prosser rejects this requirement.)
3. The plaintiff does not consent to the confinement.
4. The confinement was not otherwise privileged.
Example:

Use of restraints in managing clients

Civil laws protect the rights of individual persons within our society and encourage
fair and equitable treatment among people.

Generally ,violations of civil laws cause harm to individual or property

38

Prevention practices:
o Child correction:
Depending on the jurisdiction, corporal punishment of children by parents or
instructors may be a defense to trespass to the person, so long as the punishment was
"reasonably necessary under the circumstances to discipline a child who has misbehaved" and
the defendant "exercise prudence and restraint." Unreasonable punishments, such as violently
grabbing a student's arm and hair, have no defense.
o Consent:
Perhaps the most common defense for the torts of trespass to the person is that "to a
willing person, no injury is done," but shortened to "consensual privilege" or "consent." If a
plaintiff participates in a sporting activity in which physical contact is ordinary conduct, such
as rugby, they are considered to have consented. This is not the case if the physical contact
went beyond what could be expected, such as the use of hand gun during a fistfight, or where
the injuries were suffered not from the plaintiff's participation in the sport but inadequate
safety measures taken.
o Self-defense/Defense of Others/Defense of Property:
Self-defense, or non-consensual privilege, is a valid defense to trespasses against the
person, assuming that it constituted the use of "reasonable force which they honestly and
reasonably believe is necessary to protect them or someone else, or property." The force used
must be proportionate to the threat.
Trespass to Chattels
Trespass to chattels, also known as trespass to goods or trespass to personal property, is
defined as "an intentional interference with the possession of personal property, proximately
causing injury." While originally a remedy for the absorption of personal property, the tort
grew to incorporate any interference with the personal property of another.

39

Generally, trespass to chattels possesses three elements:

1. Lack of consent. The interference with the property must be non-consensual. A claim
does not lie if, in acquiring the property, the purchaser consents contractually to
certain access by the seller. "Any use exceeding the consent" authorized by the
contract, should it cause harm, gives rise to a cause for action.
2. Actual harm. The interference with the property must result in actual harm. The
threshold for actual harm varies by jurisdiction. Example: an electronic message may
constitute a trespass if the message interferes with the functioning of the computer
hardware, but the plaintiff must prove that this interference caused actual hardware
damage or actual impaired functioning.
3. Intentionality. The interference must be intentional. What constitutes intention varies
by jurisdiction, however, the Restatement (Second) of Torts indicates that "intention
is present when an act is done for the purpose of using or otherwise intermeddling
with a chattel or with knowledge that such an intermeddling will, to a substantial
certainty, result from the act" and continues, "it is not necessary that the actor should
know or have reason to know that such intermeddling is a violation of the possessory
rights of another."
Remedies for trespass to chattel include:

Damages

Liability for conversion

Injunction depending on the nature of the interference.

Trespass to land
Trespass to land involves the "wrongful interference with one's possessory rights in real
property." Generally, it is not necessary to prove harm to a possessor's legally protected
interest; liability for unintentional trespass varies by jurisdiction. "At common law, every
unauthorized entry upon the soil of another was a trespasser", however, under the tort scheme
established by the Restatement of Torts, liability for unintentional intrusions arises only under
circumstances evincing negligence or where the intrusion involved a highly dangerous
activity.
Subsoil:
40

Aside from the surface, land includes the subsoil, airspace and anything permanently
attached to the land, such as houses, and other infrastructure.
For example

Drilling a directional well that bottoms out beneath another's property to access oil and
gas reserves is trespass, but a subsurface invasion by hydraulic fracturing is not. Where
mineral rights are severed from surface ownership, it is trespass to use another's surface
to assist in mining the minerals beneath that individual's property, but, where an
emergency responder accesses the subsurface following a blowout and fire, no trespass
lies.

Even the possible subsurface migration of toxic waste stored underground is not
trespass, except where the plaintiff can demonstrate that the actions "actually interfere
with the owner's reasonable and foreseeable use of the subsurface or, in some
jurisdictions, that the subsurface trespasser knows with "substantial certainty" that the
toxic liquids will migrate to the neighboring land.

Airspace:
The rights of landowners over airspace are quite limited. Objects hovering above a
person's property, though attached to the ground, may constitute trespass. However, should the
overhang fail to generate actual harm, the court may deny a plaintiff equitable relief despite
the technical trespass.
(d) Invasion of Privacy
Invasion of privacy is the intrusion into the personal life of another, without just cause,
which can give the person whose privacy has been invaded a right to bring a lawsuit for
damages against the person or entity that intruded. It encompasses workplace monitoring,
Internet privacy, data collection, and other means of disseminating private information. Nonpublic individual has a right to privacy from: a) intrusion on one's solitude or into one's private
affairs; b) public disclosure of embarrassing private information; c) publicity which puts
him/her in a false light to the public; d) appropriation of one's name or picture for personal or
commercial advantage.

41

The Supreme Court has ruled that there is a limited constitutional right of privacy based
on a number of provisions in the Bill of Rights and subsequent amendments. This includes a
right to privacy from government surveillance into an area where a person has a "reasonable
expectation of privacy" and also in matters relating to marriage, procreation, contraception,
family relationships, child rearing and education. The court has also recognized a right of
anonymity and the right of groups to not have to disclose their members' names to government
agencies. Indian Penal code for invasion of privacy is under 2C:14-9. Invasion of privacy,
degree of crime; defenses, privileges.
For example:

Lack of privacy for the patients while procedures

Medical professionals misbehaving with clients

Unwanted exposure of body parts of the patients during surgery and delivery.

(e) Defamation
Defamation

also

called

calumny,

vilification,

traducement

which

is

the

communication of a statement that makes a claim, expressly stated or implied to be factual,

that may give an individual, business, product, group, government, or nation a negative image.
It is usually a requirement that this claim is false and that the publication is communicated to
someone other than the person defamed. Defamation is tarnishing the reputation of someone.
Defamation does not affect or hinder the voicing of opinions.
Types

Slander
The common law origins of defamation lie in the torts of slander (harmful statement

in a transitory form, especially speech), each of which gives a common law right of action.

Libel
Libel is defined as defamation by written or printed words, pictures, or in any form

other than by spoken words or gestures. The law of libel originated in the 17th century in

42

England. With the growth of publication came the growth of libel and development of the tort
of libel.
Punishment for Defamation: Whoever defames another shall be punished with simple
imprisonment for a term which may extend to two years, or fine, or both.
However There Are Certain Exceptions in Defamation
1. It is not defamation to impute anything which is true concerning any person, if it is for
public good that the imputation should be made or published.
2. It is not defamation to express in good faith any opinion whatever regarding the
conduct or character of a public servant in discharge of his public function.
3. It is not defamation to express in good faith any opinion regarding the conduct or
character of any person touching any public question.
4. It is not defamation to publish a substantially true report or result of a Court of Justice
of any such proceedings.
5. It is not defamation to express in good faith any opinion regarding the merits of any
case, which has been decided by a Court of Justice, or the conduct of any person as a
party, or the witness or the agent, in such case.
6. It is not defamation to express in good faith any opinion regarding the merits of any
performance which an author has submitted to the judgement of the public.
7. It is not defamation if a person having any authority over another person, either
conferred by law or arising out of a lawful contract, to pass in good faith any censure
on the conduct of that other in matters to which such lawful authority relates.
8. It is not defamation to prefer in good faith an accusation against any person to any of
those who have lawful authority over that person with respect to the subject matter of
accusation.
9. It is not defamation to make an imputation on the character of another person,
provided it is made in good faith by person for protection of his or other's interests.
10. It is not defamation to convey a caution, intended for the good of a person to who
conveyed or for public good.
For example:

Disclosure of a false AIDS diagnosis may constitute defamation of character.

43

A nurse who makes false statements about a client or co-worker in the client's
record or the local newspaper could be guilty of libel.

Telling a client that another nurse is incompetent is slander.

(f) Statutory torts

A statutory tort is like any other, in that it imposes duties on private or public parties;
however they are created by the legislature, not the courts. One example is in consumer
protection, with the Product Liability Directive in the European Union, where businesses
making defective products that harm people must pay for any damage resulting. Liability for
bad or not working products is strict in most jurisdictions. The theory of risk spreading
provides support for this approach. Since manufacturers are the 'cheapest cost avoiders',
because they have a greater chance to seek out problems, it makes sense to give them the
incentive to guard against product defects. Another example is occupier's liability, which was
seen as overly complex and illogical; so many jurisdictions replaced the common law rules for
occupiers' liability with statutory torts. Statutory torts also spread across workplace health and
safety laws and health and safety in food produce. Such torts as often grouped in with quasitorts.

Nuisance
Legally, the term nuisance is traditionally used in three ways: (1) to describe an

activity or condition that is harmful or annoying to others (example- indecent conduct, a

rubbish heap or a smoking chimney); (2) to describe the harm caused by the before-mentioned
activity or condition (example- loud noises or objectionable odors); and (3) to describe a legal
liability (responsibility) that arises from the combination of the two. The law of nuisance was
created to stop such bothersome activities or conduct when they unreasonably interfered either
with the rights of other private landowners (example- private nuisance) or with the rights of
the general public (example-public nuisance). The tort of nuisance allows a claimant (formerly
plaintiff) to sue for most acts that interfere with their use and enjoyment of their land.
For example: A brewery made stinking vapors which wafted onto a neighbor's property,
damaging his papers. As he was a landowner, the neighbor sued in nuisance for this damage.

44

Nuisance is of two kinds:

1. Public
2. Private
Public Nuisance is an offence, which affects the public at large, or some considerable
portion of them. It depends upon the number of houses and the concourse of people in vicinity;
and the annoyance or neglect must be of a real and substantial nature. Acts which seriously
interfere with the health, safety, comfort or, convenience of the public or, which tend to
degrade public morals, have always been considered public nuisance if it is shown that they
render enjoyment of life and property uncomfortable. No prescriptive right can be acquired to
maintain a public nuisance.

For example:

Nuisance in the road by a drunken man

Nuisance by the political followers during strikes.

Private Nuisance is anything done to the annoyance or to hurt another and not

amounting to trespass. It is an act affecting some particular individual or individuals as

distinguished from the public at large.
A person is guilty of nuisance when he:
1. Does any act, or is guilty of an illegal omission, and
2. Such act or omission:
i.

Must cause any common injury, danger or annoyance;

a. To the public, or
b. To the people in general who dwell or occupy property in the vicinity,
or

ii.

Must necessarily cause injury, obstruction, danger or annoyance to any

persons who had rights to use.

45

For example:

Fight with the neighbors

Rubbish heap

Indecent conduct

Punishment: Whoever causes nuisance shall be punishable with imprisonment, or fine, or

both depending upon the discretion of the court.
(g) Economic torts
Economic torts protect people from interference with their trade or business. The area
includes the doctrine of restraint of trade and has largely been submerged in the twentieth
century by statutory interventions on collective labour law and modern antitrust or competition
law.
Contract law
A contract law is a legally enforceable agreement between two or more parties with
mutual obligations, which may or may not have elements in writing. Contracts can also be
formed orally (parol contracts). The remedy at law for breach of contract is usually
"damages" or monetary compensation. In equity, the remedy can be specific performance of
the contract or an injunction. Both remedies award the damaged party of the "benefit of the
bargain" or expectation damages, which are greater than mere reliance damages, as in
promissory estoppels. The main contract law in India is codified in the Indian Contract Act,
which came into effect on September 1, 1872 and extends to all India except the state of
Jammu and Kashmir. It governs entrance into contract, and effects of breach of contract.
Indian Contract law is popularly known as mercantile law of India. Originally Indian Sales of
Goods Act and Partnership Act were part of Indian Contract act, but due to needed
amendment there acts were separated from Contract Act. Contract act is the main and most
used act of legal agreements in India.

46

Liabilities
A liability can mean something that is a hindrance or puts an individual or group at a
disadvantage, or something that someone is responsible for, or something that increases the
chance of something occurring (i.e. it is a cause).
Types of liabilities:
1. Accounts Payable: Amounts owed to others for goods and services received and assets
acquired, for which a bill has been received or approved. Any percentage of amounts due to
contractors that retains as a guarantee of performance may remain in a special account
established for retention. Document the accounts payable control account(s) with unpaid
invoice files, subsidiary ledgers, or other forms of subsidiary records. The accounting records
must distinguish between accounts payable to non- Federal entities and accounts payable to
other Federal agencies.

2. Accruals: Amounts owed by the Department for items or services received, expenses
incurred, assets acquired, or construction performed, for which a bill (e.g., progress billings,
grant reimbursement requests, and other billings) has not been received or approved.
9 Interest Payable: Interest payable represents liabilities for interest expense incurred
but not yet paid. These expenses typically arise from interest due on long-term debts,
capital lease obligations, and late payment of invoices. The accounting records must
distinguish between interest payable to non-Federal entities and interest payable to
other Federal agencies.
9 Accrued Payroll and Benefits: Accrue the unpaid wages and benefits that employees
have earned at the close of each accounting period. Generally, federal performance
awards are excluded.

3. Accrued Leave.

Annual Leave: Record the liability for annual leave at the wage at which the leave is
earned and adjusted each year to reflect pay increases, unused leave balances,
statutory limitations to leave amounts, and to reflect employees. Liabilities 11-3
transferred in or out during the year. Accrued leave for DOE employees will be
recorded as a liability.

47

Compensatory Leave: Record compensatory leave the same as annual leave for
accrual purposes.

Sick Leave: Accrue sick leave for contractor employees if a contractual requirement
exists for employees to be paid for unused sick leave. A liability for DOE employees
will not be accrued since payment is not made for unused sick leave.

Exceptions: The minimum requirements are intended to provide a proper balance

between materiality and the high volume of cost accrual transactions, accruals should
ensure that the yearend financial statements present fairly the aggregate cost accruals
for the Department.

4. Non-Integrated Contracts and Purchase Orders: Accrue non-invoiced costs monthly if

the uncosted balance is greater than $1 million.

5. Deferred Revenues: Deferred revenues represent advance payments from others to cover
the cost of services, materials, or other assets that DOE will furnish in the future. The
accounting records must distinguish between advances received from other Federal agencies
and advances received from non-Federal entities. Reimbursable Work, Revenues and Other
Collections. Costs incurred in the performance of work for Federal and non-Federal
entities.

6. Funds Held for Others: A liability shall be established whenever DOE has physical
possession or responsibility for non-Government personal property or cash. This includes
certain funds that belong to others, payroll deductions and deposit funds. Funds held for
others also include amounts held in suspense accounts awaiting disposition or
reclassification. The individual details for each of these accounts reside in the asset accounts.
The balances in these accounts must be supported by schedules of voucher deductions,
collections, and transfers between accounts.

7. Suspense Accounts: Suspense accounts include amounts arising in the course of

operations that cannot be analyzed readily and recorded to the proper account because of
inadequate information, uniqueness of the transaction, or similar complications. Temporarily
record such items to the suspense account to avoid undue delays to monthly closing.

48

Determine the proper account for all suspense items and record them accordingly as soon as
possible to ensure accurate financial reporting.

8. Appropriated Debt.

DOE occasionally receives appropriations that provide programs with authority to

borrow funds. Borrowing authority is limited by the amounts specified in the
appropriation acts. Funds that are borrowed to finance appropriated obligation
authority must be repaid into the General Fund of the Department of the Treasury.
Interest shall be charged from the date the funds are credited to the appropriation until
the date of repayment.

Power marketing administration legislation requires recoupment of appropriate funds

over a specified time period and rate of interest.

9. Contingent Liabilities.
(1) General. Contingent liabilities are potential liabilities that might become actual if certain
future events, beyond the Governments control, result in losses or impairments of assets or
incurrence of liabilities.
(a) When a loss contingency exists, the likelihood that a future event or events will confirm
the loss or impairment of an asset or the incurrence of a liability can range from probable to
remote.
1. Probable: The future event or events are likely to occur.
2. Reasonably Possible: The chances of the future event or events occurring are more than
remote but less than likely.
3. Remote: The chances of the future event or events occurring are slight.
(b) Accrual and disclosure of contingencies, including programmatic impacts, vary
depending on probability of occurrence.
1. Probable and Estimable: Losses that are deemed probable and can be reasonably estimated
will be accrued as a liability. Disclosure of the nature of the accrual is necessary if the
financial statements would be misleading without such disclosure.
2. Probable but Inestimable: If the contingency is deemed probable but cannot be estimated, a
footnote disclosure should be made on the financial statements.
3. Reasonably Possible: May require disclosure depending upon significance and materiality.
4. Remote: No accrual or disclosure required.

49

(c) Reporting thresholds for contingencies relative to litigations are provided in annual
guidance.
(2) Loan Guarantees and Commitments. Reserved
(3) Tort Claims. Tort claims are contingent liabilities and are disclosed in the financial
statements

10. Leases.
(1) A capital lease shall be treated as the acquisition of an asset and the incurrence of a
liability. All lease-purchases or capital leases.
(2) The maximum amount of the Governments liability for an operating lease is the full
amount of the operating lease unless the lease includes a cancellation clause. In this case, the
maximum liability is the amount of the lease payments over the minimum lease period plus
any required cancellation payment. With operating leases, up-front budget authority must be
available to cover the maximum amount of the Governments liability.

11. Unfunded Liabilities: Unfunded liabilities result from the receipt of goods or services or
occurrences of eligible events in the current or prior periods for which revenues or other
sources of funds necessary to pay the liabilities have not been made available through
Congressional appropriations or current earnings of the Department. The Department has
established specific liability accounts to record unfunded liabilities. The use of these accounts
is restricted to those liabilities specifically identified in the SGL.

12. Other Liabilities: Any other liabilities that have not been defined elsewhere should be
disclosed in the financial statements. The principle of materiality and full disclosure should
govern the inclusion of such liabilities. The nature of each liability should be identified and
reported, either by a footnote to the financial statements or by actual inclusion of an amount
in a liability account, if the potential amount due or a loss can be estimated.

50

Areas of potential liability for nurses:

AREA

EXAMPLES

Failure to monitor and

asses

Failure to recognize significant changes in a clients

condition

Failure to report significant changes in a clients

condition

Failure to obtain a complete database

Failure to monitor a client as indicated by the clients

condition

Failure to ensure safety

Medication errors

Inadequate monitoring of a client

Improper use of restrictive services

Failure to identify a clients risk for injury

Inappropriate use of equipment

Failure to question medication orders that are unclear

Failure to adhere to established procedures in

medication administration

Failure to recognize adverse drug reactions

Lack of familiarity with communication

Lack of communication in verbal or written medication

orders

Improper

Failure to maintain currency in clinical skills

implementation of skills

Failure to follow agency policy

or procedures

Performance of unfamiliar skills

Failure to initiate appropriate actions based on

assessment

Documentation errors

Failure to document nursing actions

Failure to document information relevant to a clients

condition

Failure to document in accordance with agency policies

51

Legal regulation of nursing practice

1. Nurse Practice Acts:
Among them ,powers granted to states is the ability to regulate the practice of health
care providers, including RNs. Regulation of the health care professions protects the public by
excluding uneducated or unlicensed persons from practicing in a health care profession and by
defining the nature and scope of professional practice. The nursing profession and others had
to carefully construct practice acts that excluded responsibilities addressed in the previously
adopted, well accepted definition of medical practice. The historic dominance of medicine in
defining the health care professions continues .to challenge the nursing profession as nurse's
move into more advanced practice roles such as nurse anesthetist, nurse midwife and nurse
practitioner.

Common Features of Nurse Practice Acts:

A nurse practice act is the most important law affecting nursing practice. Each state has
its own nursing practice act, and the definitions and descriptions of nursing sometimes differ
from state to state. This has created problems for the nursing profession, particularly with
regard to reimbursement for services.

A Nurse Practice Act defines the practice of nursing; both registered professional
nursing and licensed practical nursing.

The services may include assessing health-related topics, and providing supportive
care.

It also delineates the rules and regulations that govern nursing practice for the
licensed practical Morse, the nurse practitioner, the nurse anesthetist, and the nurse
midwife.

The relationship of the professional nurse to other health care providers is outlined in
a nurse practice act.

The care nurses provide to clients independent of a physician's order must be

consistent with the treatments ordered by the physician.

A nurse practice act establishes the requirements for obtaining a license to practice
nursing. Another, common feature of a nurse practice act is the creation of a state
board if nursing. The state board is created to assist in matters related to profession
licensing and conduct.
52

Finally, a nurse practice act defines professional misconduct.

2. Professional Misconduct:
Professional Misconduct is a violation of the act that can result in disciplinary action
against a nurse.
Examples of Professional Misconduct:
Exercising undue influence on the client
Moral unfitness
Revealing personal information without the client's prior consent
Practicing beyond the scope permitted is law.
Delegating professional responsibilities to a person not qualified perform them
Abandoning or neglecting a client
Harassing, abusing, or intimidating a client physically or verbally
Failing to maintain a record reflecting evaluation and treatment of a client
Failing to exercise appropriate supervision over persons who can practice only under
supervision of a licensed professional.
Guaranteeing satisfaction or cure from the performance of professiona1 services
Failing to wear an identification badge
Failing to use scientifically accepted infection control techniques

3. Disciplinary Actions:
Disciplinary actions for professional misconduct are part of administrative procedure. A
specific state agency, such as the Board of Nursing, the Office of Professional Discipline, or
the Office of Regulation of the Professions is designated to review all manage allegations of
professional misconduct. The state agency investigations the allegation, prosecutes or settles a
disciplinary proceeding, and enforces the penalty imposed. The disciplinary proceeding may
involve a hearing before an administrative officer if a settlement cannot be reached. Penalties
that a state agency can impose range from relatively mild to quite severe, and they may be
temporary or permanent. An administrative warning may be issued to resolve a violation
involving a minor or technical matter.

The most serious penalty is revocation of the nursing license.

Other possible penalties include censure and reprimand, a fine (not to exceed a
specified dollar amount), a requirement to perform community service, a requirement
53

to complete a specified course of education or training, and an annulment of

registration or license.

Suspension of license is another penalty that can be imposed.

A total suspension may be given for a specified period of time' or until a course of
therapy or treatment is completed.

A partial suspension, which allows you to work is nursing but not in the area or task
(e.g., giving medications) to which the suspension applies, is also possible.

The suspension could last until successful completion of a course of retraining.

Hospital related laws

1. Central births and deaths Registration Act 1969.
2. Medical Termination of Pregnancy Act 1971
3. The Infant Mille Substitutes, Feeding bottles and Infant Food

Regulation of production supply and Distribution) Act 1992

4. Transplantation of Human organs Act 1994.
5. Prenatal Diagnostic Techniques (Regulation and prevention of Misuse) Act 1994
6. Drugs and cosmetics (Amendment) Act of 1986
7. Narcotics Drugs psychotropic substance Act 1985.
8. Industrial employment (Standing orders Act 1946)
9. Employee state Insurance Act 1948
10. Payment of wages Act 1972
11. Consumer protection Act 1986

Laws affecting nursing practice

Several laws not directly focused on the practice of nursing have a significant impact
on the way you must practice nursing. These laws include:

Occupational Safety and Health Act:

Occupational Safety and Health Act of 1970 known as OSHA, established legal

standards that define safe and healthful working conditions. It is periodically updated and
expanded, and it affects the nurse in two ways.

54

1. It sets standards of working conditions. Example: OSHA directs the manner in which
potentially toxic or flammable chemicals are handled. The use and care of electrical
equipment is another area OSHA regulates.
2. Some of the requirements of the law dictate how you manage clients. Example: It
provides standards for the management of contaminated equipment and supplies and
the types of isolation techniques used for infectious clients. Promoting health and
safety as professional, obligation and legal mandate.

Controlled Substance Acts:

Several laws have been enacted that address standards for drug development and

marketing. This law affects the process by which new drugs become available to clients. Most
significant is Comprehensive Drug Abuse Prevention and Control Act of 1970. This law was
enacted to regulate the distribution and use of drugs with the potential for abuse. The nursing
obligations under this law include proper storage and documentation of controlled substances.
Failure to meet the requirements of this law is grounds for charges of professional misconduct
and potential criminal action against nurses.

Health Care Quality Improvement Act (1986)

One of the difficult issues in attempting to protect the public from unsafe and
incompetent health care providers has been the racking information related to adverse
licensure actions, malpractice payments, and adverse professional actions. The law which does
apply to nurses has limited the ability to health care practitioners who had adverse action taken
against them in one state from moving to another state without disclosing their previous
performance.

Patient's bills of rights

The American Hospital Association (AHA) replaced its Patient's bill of Rights recently

with a straightforward brochure informing clients about what they should expect during their
hospital stay with regard to their rights and responsibilities. The brochure covers six areas
described as the basics that clients and their families can expect in their treatment during their
hospital stay.

55

What to expect during Hospital stay?

1. High-quality hospital care.
2. A clean and safe environment.
3. Involvement in care.
o Discussing medical condition and information about medically appropriate
treatment choices.
o Discussing treatment plan.
o Getting information from patients
o Understanding health care goals and values.
o Understanding who should make decisions when patients cannot.
4. Protection of privacy.
5. Preparing patients and their family for when nurse leave the hospital.
6. Help with bill and filing insurance claims.
A Patient's Bill Of Rights:
1. The patient has the right to considerate and respectful care.
2. The patient has the right to obtain from his physician complete current information
concerning his diagnosis, treatment and prognosis in terms the patient can be
reasonably expected to understand. When it is not medically advisable to give such
information to the patient, the information should be made available to an appropriate
person on his behalf. He has the right to know, by name, the physician responsible for
coordinating his care.
3. The patient has the right to receive from his physician information necessary to give
informed consent prior to the start of any procedure/ or treatment. The patient also has
the right to know the name, the physician responsible for coordinating his care.
4. The patient has the right to refuse treatment to the extent permitted by law and to be
informed of the medical consequences or-his action.
5. The patient has the right to every consideration of his privacy concerning his own
medical care program. Case discussion, consultation, examination, and treatment are
confidential and should be conducted discreetly.
6. The patient has the right to expect that all communication and records pertaining to his
care should be treated ad confidential.
7. The patient has the right to expect that within its capacity a hospital must have make
responsible response to the request of a patient for services. The hospital must provide
evaluation, service and/ or referral as indicated by the urgency of the case. When
56

medically permissible, a patient may be transferred to another facility only after he has
received complete information and explanation concerning the needs for and
alternative to such a transfer.
8. The patient has the right to obtain information as to any relationship of his hospital to
other health care and educational institutions in so far as his care is concerned. The
patient has the right to obtain information as to the existence of any professional
relationships among individuals, be name, which is treating him.
9. The patient has the right to be advised if the hospital proposes to engage in or perform
human experimentation affecting his care or treatment. The patient has the right to
refuse to participate in such research projects.
10. The patient has the right to know in advance what appointment times and physicians
are available and where. The patient has the right to expect that the hospital will
provide a mechanism whereby he is informed by his physician or a delegate of the
physician of the patient's continuing health care requirements following discharge.
11. The patient has the right to examine and receive an explanation of his bill regardless of
source of payment.
12. The patient has the right to know what hospital rules and regulations apply to his
conduct as a patient.

Bills of rights for registered nurses

The Bill of Rights for Registered Nurses is a tangible tool, which aids in improving
workplaces and ensuring nurses' ability to provide safe, quality patient care. The Bills of
Rights is intended to empower nurses by making it clear what is absolutely none negotiating in
the workplace.

The seven basic tenets of the Bills of Rights for Registered Nurses are:

1. Nurses have the right to practice in a manner that fulfills their obligations to society
and to choose who receive nursing care.
2. Nurses have the right to practice in environments that allow them to act in accordance
with professional standards and legally authorized scopes of practice.
3. Nurses have the right to a work environment that supports and facilitates ethical
practice, in accordance with the Code of Ethics for nurses and its interpretive
statements.
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4. Nurses have the right to freely and openly advocate for themselves and their patients
without fear of retribution.
5. Nurses have the right to fair compensation for their work, consistent with their
knowledge, experience, and professional responsibilities
6. Nurses have the right to a work environment that is safe for themselves and their
patients.
7. Nurses have the right to negotiate the conditions of their employment, either as
individuals or collectively, in all practice settings.

Role of boards of nursing to ensure safe practice

The Board of Nursing (or its equivalent) is legally empowered to carry out the
provisions of the law. The membership of the board, the procedures for appointment and
removal, and the qualifications of board members are determined by the Nurse Practice act.
The board has the power to write the rules and regulations used in daily operations. The
Governor of the state usually appoints the members of the State Board of Nursing. The law
specifies the occupational background of the candidates; nominates may be made by nurse's
organizations and other interested parties. North Carolina is the only state in which the RN
members of the state board are elected by the RNs in the state. Boards of nursing range in size
from 7 to 17 members.
The responsibilities of these centralized agencies may range from administrative matters
(such as collecting fees, managing routine license renewals, and providing secretarial services)
to decision making, relegating individual boards like the Board of Nursing, to an advisory
status. They also cooperate with the ANA and the National League for Nursing (NLN) in some
matters, but maintain the separation that is required of a governmental body.

The Board of nursing typically must perform the following functions:

1. Establish standards for licensure.

2. Examine and license applicants.
3. Provide for interstate endorsement.
4. Renew licenses, grant temporary licenses, and provide for inactive status for those
already licensed who request it.
5. Enforce disciplinary codes.
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6. Provide rules for revocation of license.

7. Regulate specialty practice.
8. Establish standards and curricula for nursing programs.
9. Approve nursing education programs

Journal Article
1. Domestic Violence and the Criminal Justice System: An Overview
-

Edna Erez, LL.B., Ph.D.

It is only recently that domestic violence has been considered a violation of the law.
Although men have battered, abused and mistreated their wives or intimate partners for a long
time, historically, wife or partner abuse has been viewed as a "normal" part of marriage or
intimate relationships. The article discusses about the research findings related to domestic
violence and the criminal justice system, along with current controversies concerning the
justice approach to domestic violence, its law enforcement, and related unfolding trends in the
movement to address domestic violence through the criminal justice system.
2. Nurses, Negligence, and Malpractice
-

Eileen M. Croke EdD et al

More and more nurses are being named defendants in malpractice lawsuits, according to
the National Practitioner Data Bank (NPDB). As per the current records the number of
malpractice payments made by nurses increased from 253 to 413. The trend shows no signs of
stopping, 1-3 despite efforts by nursing educators to inform nurses and student nurses of their
legal and professional responsibilities and limitations. A charge of negligence against a nurse
can arise from almost any action or failure to act that result in patient injury-most often, an
unintentional failure to adhere to a standard of clinical practice-and may lead to a malpractice
lawsuit.
Conclusion
Legal responsibility in nursing to practice nursing within the guide lines laid legal
guidelines for nursing practice while caring for parents since negligence may cause a great
distress to nurse parent and others as well as to reputation of the down by the law of
centre/state, statutory bodies and institutional Policies. Every Nurse should act as per the legal
guidelines for nursing practice while instilled.

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Book Reference
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http://www.icn.ch/images/stories/documents/about/icn code- english.pdf.

http://www.Nursingtimes.net

http://www.scribd.com/doc/visibility of Nurses.

www.articlesbase.com/resumes-articles/the legal system

all nurses.com/nclex-discussion-forum/law

onlinelibrary.wiley.com/doi/abstract/Assertiveness- among- Professional- Nurses.

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