Chapter 4: Legal Aspects of Nursing

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Chapter 4 Legal Aspects of Nursing

• Bonnie M. Wivell, MS, RN, CNS

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The U.S. Constitution

• Ensures order
• Protects individuals
• Resolves disputes
• Promotes the general welfare
• Branches
• Executive Charged to implement law (President)
• Legislative Charged to create law (Congress)
• Judicial Charged to interpret law (Supreme Court)

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American Legal System

• Laws are rules of conduct that are authored and
  enforced and hold people accountable for
  compliance
• Common Law decisional, judge-made
• Statutory Law legislative process
• Administrative Law legislative branch delegates
  authority to government agencies to create laws
• Administrative cases result when a person
  violates the rules and regs established by this
  law (i.e. RN or MD practices without a valid
  license)
• Civil Law enforces rights of individuals
• Criminal Law protects society

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Nursing as a Regulated Practice

• Licensing is to protect the public health,
  safety, and welfare
• All states have nurse practice acts which are
  statues that define and control nursing
• Defines practice of a professional nursing
• Sets minimum educational qualifications and other
  requirements for licensure
• Determines legal titles abbreviations nurses
  may use
• Provides for disciplinary action of licensees for
  certain causes
• State board of nursing
• Responsible for administering and enforcing nurse
  practice act in its state

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ANA Urges The Use of the Following Content

1. Differentiation between advanced and generalist
   nursing practice
2. Authority to regulate advanced nursing practice
   including prescription writing
3. Authority to oversee unlicensed assistive
   personnel
4. Clarification of nurses responsibility for
   delegation to supervision of others
5. Support of mandatory licensure for nurses while
   retaining flexibility for changing nature of
   nursing practice

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Executive Authority of SBN

• Governor (or state executive) delegates
  responsibility for administering the nurse
  practice act to an executive agency the State
  Board of Nursing
• State Board of Nursing consists of
• RNs, LPNs, Consumers appointed by governor
• Functions
• Executive administer the nurse practice act
• Legislative adopt rules to implement the act
• Judicial authority to deny, suspend, or revoke
  a license or otherwise discipline a licensee or
  deny application for licensure

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Licensing

• All states have a mandatory licensure law for the
  practice of nursing to safeguard the public
• Has the power to discipline for performing
  professional functions in dangerous manner
• Practicing while impaired 1 reason for license
  revocation, suspension
• Peer assistance programs for substance abuse
  voluntary alternative to suspension or revocation
  of license
• Minimum criteria for nursing education programs
• Schools of nursing must be state approved to
  operate
• National approval demonstrates higher than
  minimal standards

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Licensure Examinations

• National Council Licensure Examination NCLEX-RN
  (Since 1978)
• Tests critical thinking and nursing competence in
  all phases of the nursing process
• NCSBN develops tests, updates, validates and sets
  minimum scores
• Since 1994 computerized adaptive testing
• Test plan https//www.ncsbn.org/1287.htm
• Licensure by endorsement (since 1944)
• RNs can practice in other states without having
  to retake another licensure exam
• Must submit proof of licensure pay fee

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Trends in Licensure

• Society mobile traveling nurse, telehealth
• NCSBN developed mutual recognition modellicense
  in one state of residency yet practice in other
  compact member state without additional licenses
• Nurse Licensure Compact (NLC) started 2000 with
  Utah, Texas Wisconsin by mid 2008, 23 states
  had joined
• https//www.ncsbn.org/nlc.htm
• Global perspective of licensure on NCSBN
  agendarecruitment from other nations
  controversial.
• NCSBN began administering NCLEX internationally
  to competent nurses applying for U.S. licensure
  in January 2005.

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Legal Risks in Nursing Practice

• Malpractice greatest legal concern
• Negligencefailure to act as a reasonably prudent
  person would have acted in similar circumstances
• Commission doing something that should not have
  been done
• Omission failing to do things that should have
  been done
• Central question in any charge of malpractice
• Was the prevailing standard of care met?

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Legal Risks in Nursing Practice

• Malpractice claim, evidence presented to jury to
  determine if elements of liability are present.
• Consider
• Prevailing standards of care what another
  prudent nurse would have done
• Expert witness testimony
• SOC that prevailed at the time
• National standards of nursing practice
• Patient record
• Direct testimony of patient, nurse, and others

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Prerequisite of a Malpractice Action

• Nurse (defendant) has specialized skills
  knowledge, through practice causes the patient
  (plaintiff) injury
• Patient proves nurse is liable with all following
  elements
• Nurse has assumed duty of care (responsibility
  for pts care)
• Nurse breached duty of care by failing to meet
  SOC
• Failure of nurse to meet SOC was proximate cause
  of the injury
• Injury is proved
• Monetary damages are awarded when plaintiff
  prevails
• In past, MD or hospital paid damages
• Nurse liability has risen due to increased
  expertise, autonomy and authority

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Case Summary from 1995-2001

• Acute Care Hospitals 60
• Nursing Homes/Rehab/TCU 18
• Psychiatric Settings 8
• Home Health 2
• MD Offices 2
• APN cases 9

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Nurse Liability

• Six major categories
• Failure to follow standard of care
• Failure to use equipment in responsible manner
• Failure to communicate
• Failure to document
• Failure to assess and monitor
• Failure to act as a patient advocate
• Note student nurse errors omissions may also
  be considered by courts as malpractice

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Delegation

• The nurse is ultimately responsible for acts
  he/she delegates
• ANAs Code of Ethics for Nurses states
• The nurse is responsible and accountable for
  individual nursing practice and determines the
  appropriate delegation of tasks consistent with
  the nurses obligation to provide optimum patient
  care.
• RNs delegate care (tasks), but not nursing
  process cannot delegate assess. eval.
• Most debated area medication administration to
  unlicensed assistive personnel (22 states allow)
• Note State nurse practice acts do not give
  delegation authority to LPNs

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5 Rights of Delegation

• Right task
• Right circumstances
• Right person
• Right direction/communication
• Right supervision/evaluation

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Assault Battery

• Assault threat or attempt to make bodily contact
  without another persons consent causes fear
  that battery about to occur
• Example Threat to give patient vitamin injection
  if does not eat
• Battery assault carried out, impermissible
  touching actual harm may or may not occur
• Example Give pt. vitamin injection against their
  will
• Patients have the right to refuse treatment,
  meds, etc.

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Informed Consent

• Must be given voluntarilyfreedom to accept or
  reject
• Must be given by a competent person with capacity
  to understandminors, under influence of
  drugs/alcohol, or mental deficits consent by
  parent, spouse, court-ordered guardian/proxy
• 3. Must be given enough information
• to make a decision

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Confidentiality

• Code of Ethics for nurses
• the nurse has a duty to maintain confidentiality
  of all patient information..
• Exceptions
• Discussing with others involved in patient care,
  quality assurance, legal mandates, third party
  payers
• Privileged communication lawyers, clergy
• Duty to report child abuse, gunshot wounds,
  threats to another, vulnerable adult abuse,
  certain communicable diseases

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HIPPA

• Requires all health care providers to ensure
  patient privacy and confidentiality
• Patient protections
• Patient can see obtain medical records
• Providers must give written notice of pt. rights
• Limitations placed on time records can be
  retrieved, what information shared, who can be
  present when it is shared

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Evolving Legal Issues the Nurse

• Role changes in health care--advanced practice
  nursing based on states nurse practice act
• Prescription authority-prescription writing
• Supervision of unlicensed assistive
  personnelcertified nursing assistants
• Payment mechanisms for nurses practicing in
  non-traditional roles and in advanced practice

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Patient Self-Determination Act

• Applies to acute care LTC that receive
  Medicare and Medicaid encourages patients to
  consider which life-prolonging options they
  desire
• Acute care and LTC facilities must provide
• Written information about rights
• Ensure compliance with advanced directives
• Educate staff community on advanced directives
• Document in the medical record advanced directives

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Prevent Legal Problems

• Practice in a safe setting
• Employs appropriate number and skill mix of
  personnel
• Has PP that promotes quality improvement (Risk
  management and JC)
• Keeps equipment in good working order
• Provides orientation and continuing education
• Communicate with providers, patient, family
• Document accurately, in timely manner, and
  concisely
• If not documented, not done
• Rapport with patient family can be protection
  from lawsuits
• Meet the standard of care in facility, trends in
  area of practice, ANA Nursing Scope Standards
  of Practice Stay within own limits of education,
  expertise states Nurse Practice Act

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Liability Insurance

• Carry own nurses liability insurance
• Nurses Service Organization (NSO)
  www.nso.com/nursing5 or call 1-800-2137-1500
• National Practitioner Data Bank 1986
• Encourages identification and discipline of
  practitioners who engage in unprofessional
  behavior
• Reported problem areas for nurses
• Monitoring patients
• Implementing treatments
• Medication problems

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Positive Interpersonal Relationships Important

• Prevent disgruntled patients key is positive
  relationship with patient/family
• Provide personalized care include in planning
  show compassion caring (RBC)
• Avoid criticizing or blaming health care
  providers
• Maintain a concerned and non-defensive manner

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7 Legal Tips

• Administer meds properly
• Monitor for report deterioration
• Communicate effectively
• Delegate responsibly
• Document accurately timely
• Know follow facility policies procedures
• Use equipment properly
• Austin,S.(2008). Seven legal tips for safe
  nursing practice. Nursing2008. March 2008, p
  34-40.

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Chapter 5 Ethics Basic Concepts for Nursing
Practice

• Bonnie M. Wivell, MS, RN, CNS

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Definitions

• Morals rules of conduct in regard to decisions
  of right or wrong
• Values attitudes, ideals, or beliefs that one
  holds uses to guide behavior
• Ethics reflects what actions one should take
  habits or customs
• Bioethics application of ethical theories and
  principles to moral issues or problems in health
  care
• Ethical dilemma caused by advances in technology
  that allow us to keep patients alive
• Moral distress pain/anguish affecting mind,
  body, relationships in response to a situation in
  which the person is aware of a moral problem,
  acknowledges moral responsibility, and makes a
  moral judgment about the correct action however,
  as a result of real or perceived constraints,
  participates in perceived moral wrongdoing

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Nursing Code of Ethics

• Code of ethics is a hallmark of a
  professionguidelines of professional
  self-regulation
• Provision 2 describes the nurses primary
  commitment to the patient
• Provision 5 describes the responsibility of
  nurses to maintain their own integrity
• A wise nurse who is aware of deep personal values
  and moral standards will make decisions regarding
  practice setting so the nurses own personal
  integrity remains intact, while putting patients
  and their needs first
• Moral Reflection critical analysis of ones
  morals beliefs and actions

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Kohlbergs Levels of Moral Development

• Kohlberg 1976-1986 research on men boys
  justice focused
• 1. Preconventional perspective is
  self-centered decisions based on wants/needs,
  not right/wrong children lt 9 yo, adolescents,
  adult criminals respond to punishment
• 2.Conventional moral decisions conform to
  expectations of family/society what pleases
  others most adolescents adults function at
  this level respond to prospect of personal
  reward
• 3. Post-conventional individual
  develops own moral values ignore self-interest
  and group norms in making moral choices may
  sacrifice themselves on behalf of the group
  create own morality minority of adults achieve
  this level

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Gilligans Levels of Moral Reasoning

• Gilligan 1982 research on women
• Gilligan believed womens identities based
  largely on relationships with others care
  focused
• Kolbergs theory inadequate for women as it was
  justice focused and studies were on men.
• Gilligans levels of moral development
• 1. Individual survival
• 2. Goodness, self-sacrifice
• 3. Morality of caring responsible to
  others and self
• A moral person responds to need demonstrates a
  considerations of care responsibility in
  relationships

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Put an Ethical Theory to Practice
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Ethical Theories

• Deontology duty to do what is right
• Act get facts decide same judgment in similar
  situations
• Rule principles guide actions always keep a
  promise promise kept regardless of the change
  in circumstances
• Beneficence do no harm
• Autonomy make own decision
• Utilitarianism usefulness of action is utility
  of what brings about greatest good for greatest
  number of people
• Virtue Ethics Virtues refer to specific
  character traits of truthfulness, honesty,
  courage, kindness, respect, fairness integrity
• Principalism uses ethical principles of
  beneficence, nonmaleficence, autonomy justice
  in resolution of ethical conflict or dilemmas

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Ethical Principles

• Autonomy right to determine own actions
  freedom to make own decisions
• Beneficence the doing of good (benefit)
• Nonmaleficence duty to do no harm
• Veracity telling the truth
• Fidelity faithfulness honoring commitment/
  promises
• Justice fair equal equals treated same and
  unequals treated differentlythose with greater
  or less needs should get different care
  allocation of resources a problem in health care

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The Nightingale Pledge

• I solemnly pledge myself before God and in the
  presence of this assembly, to pass my life in
  purity and to practice my profession faithfully
  (fidelity).
• I will abstain from whatever is deleterious and
  mischievous, and will not take or knowingly
  administer any harmful drug (nonmaleficence).
• I will do all in my power to maintain and elevate
  the standard of my profession (beneficence)
• and will hold in confidence all personal matters
  committed to my keeping and all family affairs
  coming to my knowledge in the practice of my
  calling (confidentiality).
• With loyalty will I endeavor to aid the physician
  in his work (fidelity),
• and devote myself to the welfare of those
  committed to my care (justice).

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Nursing Code of Ethics

• Code of ethics is a hallmark of a
  professionshape professional self-regulation,
  serving as guidelines to members of the
  profession, who then meet their responsibility as
  trustworthy, qualified, and accountable
  caregivers
• ANA Code of Ethics with Interpretive Statements
  is the latest version of the ethical code
  (1896-2003)
• COE is backed by ANAs Scope Standards of
  Practice (2004) which guides nursing practice
• Standard 12 states the RN integrates ethical
  provisions in all areas of practice

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ICNs COE

• International Council of Nurses (ICN) Code of
  Ethics (19532000) nursings respect for the
  life, dignity, rights of all people in a manner
  that is unmindful of nationality, race, creed,
  color, age, sex, political affiliation, or social
  status

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Ethical Decision Making

• Clarify the ethical dilemma
• Gather additional data
• Identify options
• Make a decision
• Act
• Evaluatedilemma resolved or not?

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Understanding Ethical Dilemmas in Nursing

• From personal value systems beliefs
• Involving peers others behaviors
• Regarding patient rights right to privacy,
  informed consent, to die, confidentiality,
  respectful care, care without discrimination,
  information concerning medical condition
  treatment, right to refuse to participate in
  research studies partnership regarding treatment
  plan
• Patient self-determination act (1991) gives
  patients legal right to determine how they wish
  to be treated in life-or-death situations.
• Ethical issues related to immigration and
  migration
• Dilemmas created by institutional issues
• Dilemmas created by patient data access issues