Qualified nurses and midwives in Australia are increasingly being offered new opportunities and ways of engaging in their disciplines that have previously been unavailable. Practicing at an advanced level as an independent expert nurse or midwife in the space where medicine, nursing and midwifery intersects with the law is one such opportunity. The Nursing and Midwifery Board of Australia (NMBA) defines advanced practice as ‘… practicing at an advanced practice level incorporates professional leadership, education, research and support of systems into their practice. Their practice includes relevant expertise, critical thinking, complex decision making, autonomous practice and is effective and safe’ .
The mainstream concept of registered nurses and midwives using their extensive existing knowledge, expertise, advanced practice experience and understanding to provide expert opinions to medical and nursing issues in a legal situation is very new in Australia. Legal nurse consulting however is a highly respected, recognised and accepted scope of practice in a number of other counties such as America where it has been widely utilised by a range of sectors, including the legal profession, as early as 1989 when a few body-specific associations were established in order to support nurse legal practice .
There is little understanding for many people today as to the full extent of roles played by nurses and midwives, from policy makers to caregivers, to independent practitioners providing crucial primary care in many under-serviced rural and remote areas around Australia. It is useful to consider that a 2020 World Health Organisation report found that ‘59% of all healthcare professionals are nurses and the global workforce of nurses is currently around 28 million…’ and that in 2017 an Australian market research company found that from all of the health professions, nursing dominated as the most highly regarded and trusted with a 94% rating, and that they had done so for 23 years running in their annual survey . This was closely followed by doctors with an 89% rating.
Undertaking independent medical assessments is by no means new to medical specialist practice in Australia and was until recently the only real option in obtaining a nonpartisan medical opinion. Fast forward to 2022 and in step nurses and midwives. At this point you may well be asking, ‘why do I need an expert opinion from a nurse or a midwife?’. The most obvious answer may be that ‘we also need to keep abreast of that ever-changing world’ because new practice opportunities available to nurses and midwives did not happen in isolation. Over time, a series of complex and unavoidable changes to professional practice, population healthcare needs, medical workforce, and funding availability have driven a narrowing of role definition and practice boundaries between doctors and nurses.
Historically the differences between the two disciplines were unmistakable and clear to all. The physician-run web blogging platform, KevinMD interestingly published an opinion-based article written by a physician in 2013 which discussed the differences between doctors and nurses or should we say, ‘the lack of differences’. The delineation between doctors and nurses was traditionally identifiable by what they wore, clear authority boundaries, and knowledge, skills and abilities. The prevailing suggestion was that even in 2013 the gap was lessening and ‘… the only thing that truly separates doctors from nurses is the ultimate responsibility’ and ‘we doctors bear this ultimate burden’.
Today, expanding practice boundaries through contemporary regulation, the introduction of advanced practice licenses, best practice-based research and access to leading-edge education for both nurses and midwives have resulted in further narrowing of the doctor-nurse professional divide. Add to this the role of Nurse Practitioner endorsed by the NMBA, a ‘Master’s prepared registered nurse’ who is licensed to work ‘autonomously and collaboratively, in an advanced and extended clinical role, using nursing knowledge and skills’   , the nursing and midwifery professions have never been more ready to join their medical colleagues in appropriately utilising their wide-ranging skills in innovative and ground-breaking ways, which includes providing their expert opinions. As regulated professions, nurses and midwives work across many clinically specialised areas that all have common foundations of care and practice. They are accountable and responsible for practicing in accordance with the NMBA standards, codes and guidelines , and as such are professional disciplines in their own right with distinctly different bodies of knowledge, theory and practice principles to that of their medical colleagues.
Having asked ‘why do I need an expert nurse or midwifery opinion?’ surely the next two questions have to be ‘how can I use their knowledge and skills?’ and ‘what value does their opinion add to my case?’.
Understanding that nurses and midwives are highly experienced in their field of practice, usually holding postgraduate qualifications and roles in clinical education and research, they use their experience and expertise in medico-legal practice to provide objective opinions on issues such as professional standards of care, breaches and omissions of care, regulation and best practice, find undiscovered medical issues, contributory negligence and pre-existing conditions, identify critical medical complexities, analyse and evaluate issues of harm and causation, and interpret applicable medical information from a wide variety of sources. Through triage case screening and comprehensive forensic review and analysis of medical records, they assist both plaintiff and defence lawyers in legal matters where health, illness or injury are issues in areas of medical negligence, personal injury, professional malpractice and risk management, to name a few.
While it is clear that doctors are not nurses, the same can be said that nurses are not doctors and as regulated professions, it is illegal for either to hold out that they are, or to provide their ‘expert’ opinion on professions they are not qualified to do so. The value that nurses and midwives add to medico-legal practice is similar and at the same time different from that of doctors. They both work within the confines of their specific regulated scopes of practice and professional disciplines. Through different lenses, they both provide objectivity, opinions and insights into the inner workings of the healthcare system. But through the sheer nature of profession where nurses hold fundamental wide-ranging knowledge, understanding and skills across many clinical areas and healthcare settings and apply these consistently to patient care, nurses are able to wholistically bring the client experience alive while making their situations and medical events understandable to lawyers, thus making the case ‘real’.
By seeking out and utilising an expert nurse or midwife’s vast skillset to undertake different tasks in nursing- and midwifery-related cases, lawyers gain critical education about unique medical issues while benefitting from cost containment, increased case management efficiency and ultimately getting opinions that are able to withstand the level of scrutiny applied to litigation.
By Janette Henderson
RN(Div.1), BA, MBA, MACN
Manager – Clinical Business Services – MedHealth