People suffering injury or loss following unacceptable standards of healthcare often resort to legal action as a means of restitution, which may result in cases being complex and multidisciplinary, requiring more than one medical expert.
While historically in Australia these experts have primarily been doctors, it is increasingly clear that nursing and midwifery cannot be left out in the provision of expert opinions.
Lawyers and other members of the legal team must be well informed when it comes to identifying the most appropriate health professionals to act as expert witnesses, as the right expert can either make or break your case. Nurses and midwives with the most relevant specialised knowledge, qualifications, skills and clinical experience can provide unique and valuable insights into medical negligence cases that strengthen and improve case outcomes. Experts who can skilfully combine clinical experience and material knowledge of the case with the best available research obtained through systematic review of relevant literature, guidelines, standards and regulations will inevitably provide a clear, concise and unbiased assessment and report relating to nursing and midwifery practice.
As expert witnesses, nurses and midwives can assist in deciphering medical records, clarifying terminology, tests and procedures, identifying deviations in standards of care, presenting evidence on nursing and midwifery practice, and identifying where other professional opinions need to be sought.
Navigating the world of nurses and midwives
Nursing and midwifery practice has developed significantly over the past few decades and selecting the more relevant expert can feel like wading through alphabet soup when trying to understand the professions and considering all the standard industry acronyms used to describe nursing and midwifery specialisations. In Australia, there are three distinct categories of professional registration for nurses, two for midwives, and the group who hold nursing and midwifery dual registrations. The following descriptions of nurses and midwives are protected titles under National Law and only people who have met the registration requirements can use them.
A nurse practitioner (NP) is a registered nurse who is experienced in their clinical specialty, educated at master’s level and endorsed by the Nursing and Midwifery Board of Australia to provide patient care in an advanced clinical role. An NP’s clinical and academic education allows them to expand their nursing boundaries to diagnose and treat acute and chronic health conditions. They are able to request and review diagnostic tests, initiate referrals, prescribe medication and collaborate with other healthcare professionals to provide holistic care, among other responsibilities. Additionally, the NP’s scope of practice includes the legal authority to practice both independently and autonomously, which includes admitting and discharging patients from health services and hospital settings.
A registered nurse (RN) is a skilled professional who has completed a Bachelor of Nursing degree through a university to meet the RN standards for practice. An RN can assess patients, develop nursing care plans, administer medication, provide specialised nursing care, supervise junior RNs and enrolled nurses, maintain professional development standards and perform leadership roles.
They can undertake postgraduate degrees to work in specialty areas and provide specialist nursing care. Examples of this are a critical care registered nurse and a registered psychiatric nurse.
Two levels of practice exist for an RN. They are:
- Clinical Nurse Specialist – a senior RN who demonstrates a higher level of skill in clinical decision making, problem identification and solution, and analysing and interpreting clinical data.
- Advanced Practice Nurse – practice at an advanced level indirect care, support of systems, professional leadership, education and research.
An enrolled nurse (EN) completes a two-year Diploma of Nursing through a vocational education provider and must work under the supervision (direct or indirect) of an RNwhen providing clinical care. This category of nurse registration is less likely to undertake expert nurse opinion consulting as the qualification, education preparation and experience differs significantly from that of an RN whose scope of practice and levels of responsibility are far greater. While an RN’s duty includes practical hands-on patient care like an EN, their responsibilities include more complex patient care, problem solving, leadership, management roles, and education and research.
Nurses and midwives with the most relevant specialised knowledge, qualifications, skills and clinical experience can provide unique and valuable insights into medical negligence cases that strengthen and improve case outcomes.
An endorsed midwife (EM) is an independent practitioner who meets the registration standard, under the National Law, in addition to that which is met by an RM, through further education and documentation of advanced clinical practice. The endorsement enables the midwife to provide Medicare-funded care, order diagnostic tests and ultrasounds related to pregnancy and prescribe and administer approved medication. Medicare services provided by an endorsed midwife are provided in a collaborative arrangement with a GP or obstetrician. EMs can have admitting or visiting rights in hospitals, and provide home birthing services.
A registered midwife (RM) is a registered health professional who provides services for women’s health and promotes wellbeing during pregnancy, birth and in the weeks following birth. Midwives promote normal physiological childbirth, identify complications for the woman and her baby, provide referral to medical care and implement emergency measures. There are two pathways to becoming a RM: a Bachelor of Nursing and then postgraduate study in midwifery, or a Bachelor of Midwifery which provides registration as a midwife only.
Dual registration (nurse and midwife)
People who complete approved courses leading to registration as an RN and RM or as an EN and RM are considered to have dual registration, and will be listed on both the nursing and midwifery registers held by the Australian Health Practitioner Regulation Agency. Nurses with dual registration are required to maintain recent clinical practice for both registrations.
Scope of practice for nurses and midwives is determined by their level of education, assessed competence and the practice they are authorised to perform, in conjunction with the Nursing and Midwifery Board of Australia’s decision-making framework, standards for practice, state and territory legislation and organisational policies and procedures, and for the EN, the delegation of the supervising nurse or midwife.,
How do I choose the ‘right’ nurse or midwife?
Contemporary healthcare environments are complex and where nurses and midwives take on a variety of roles, so how do you decide which expert will be the most beneficial in your case?
It comes down to deciding which nurse’s or midwife’s expertise is best suited to your situation. While the distinctions between nursing and midwifery are clear, it is not so easy when choosing a relevant nurse expert where their breadth of practice across a range of clinical specialties can seem daunting. After all, many medical negligence cases involving nurse opinions are complex and require multispecialty knowledge and experience.
For instance, if your case involves the death of an aged care resident following a fall, and the care planning, standards of care and action taken by nursing staff are the central issue, then an RN with clinical experience in aged care can provide insight and evidence of the standards of care in the context of administering direct patient care in an aged care setting.
Another example is where your case involves a staff member who has been injured at work and the hospital’s application of standard of care policies is questioned. An RN with management or leadership experience can give a detailed opinion regarding policy development and best industry practice.
In a case where complications arise from childbirth under a midwife’s care or postnatal care, then an experienced RM or EM would be a credible and knowledgeable witness.
A final illustration is if your case involves medical negligence in an acute care setting, such as intensive care, an emergency department, the operating theatre or an acute ward environment. In this instance, an RN with significant clinical experience in the relevant area of specialty would be able to provide holistic insight into the aspects of clinical nursing care that may be relevant to the case.
Nursing and midwifery are professional disciplines in their own right, and both have a wide range of advanced skills and knowledge that can be used to provide expert opinions. The right expert nurse or midwife with relevant expertise will provide valuable insight and an independent, factual and unbiased opinion into medico-legal issues.
 Enrolled Nurse Standards for Practice, NMBA, 2016
 Midwife Standards for Practice, NMBA, 2018
 Dual registration as a nurse and midwife, ANMF, 2016
 Decision-Making Framework for Nursing and Midwifery, NMBA, Feb 2020
 McMullan. C, Understanding your scope of practice as a new EN, On The Record ANMF Vic Branch, Nov 2020