CONTRACTUAL ARRANGEMENTS IN NURSING
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A contract is the basis of the relationship between a nurse and an employer—for example, a nurse and a hospital or a nurse and a pri- mary care provider. A contract is an agreement between two or more competent persons, on sufficient consideration (remunera- tion), to do or not to do some lawful act. A contract may be written or oral. An oral contract is as equally binding as a written contract. The terms of the oral contract, however, may be more difficult to prove in a court of law. A written contract cannot be changed le- gally by an oral agreement. If two people wish to change some aspect of a written contract, the change must be written into the contract, because one party cannot hold the other to an oral agreement that differs from the written one.
A contract is considered to be expressed when the two parties discuss and agree, orally or in writing, to terms and conditions dur- ing the creation of the contract. For example, a nurse will work at a hospital for a stated length of time and under stated conditions. An implied contract is one that has not been explicitly agreed to by the parties but that the law nevertheless considers to exist. For ex- ample, the nurse is expected to be competent and to follow hospital policies and procedures even though these expectations were not written or discussed. Likewise, the hospital is expected to provide the necessary supplies and equipment needed to provide competent nursing care.
A lawful contract requires the following four features (Guido, 2014):
1. Promise or agreement between two or more persons for the per- formance of an action or restraint from certain actions
2. Mutual understanding of the terms and meaning of the contract by all
3. A lawful purpose (i.e., the activity must be legal) 4. Compensation in the form of something of value—in most
cases, compensation is monetary.
Legal Roles of Nurses Nurses have three separate, interdependent legal roles, each with rights and associated responsibilities: provider of service, employee or contractor for service, and citizen.
PROVIDER OF SERVICE The nurse is expected to provide safe and competent care. Implicit in this role are several legal concepts: liability, standards of care, and contractual obligations.
Liability is the quality or state of being legally responsible for one’s obligations and actions and for making financial restitution for wrongful acts. A nurse, for example, has an obligation to prac- tice and direct the practice of others under the nurse’s supervision so that harm or injury to the client is prevented and standards of care are maintained. Even when a nurse carries out treatments ordered by the primary care provider, the responsibility for the nursing activity belongs to the nurse. When a nurse is asked to carry out an activity that the nurse believes will be injurious to the client, the nurse’s re- sponsibility is to refuse to carry out the order and report this to the nurse’s supervisor.
The standards of care by which a nurse acts or fails to act are legally defined by nurse practice acts and by the rule of reasonable and prudent action—what a reasonable and prudent professional with similar preparation and experience would do in similar cir- cumstances. Contractual obligations refer to the nurse’s duty of care, that is, duty to render care, established by the presence of an expressed or implied contract.