Ethical and Legal Issues in Psychiatric/Mental Health Nursing

1
Ethical and Legal Issues in Psychiatric/Mental
Health Nursing

• Chapter 26

2
Group Discussion

• Have you had any ethical dilemmas?
• How did you deal with them?

3
Legal and Ethical Concepts

• Ethics
• Study of philosophical beliefs about what is
  considered right or wrong in society
• Bioethics
• Ethical questions arising in health care
• Principles of bioethics
• Beneficence duty to act to benefit others
• Autonomy respecting rights of others to make
  decisions
• Justice duty to distribute resources equally
• Fidelity maintaining loyalty and commitment to
  patient
• Veracity duty to communicate truthfully

4
Mental Health Laws Civil Rights and Due Process

• Civil rights people with mental illness are
  guaranteed same rights under federal/state laws
  as any other citizen
• Due process in civil commitment courts have
  recognized involuntary commitment to mental
  hospital is massive curtailment of liberty
  requiring due process protection, including
• Writ of habeas corpus procedural mechanism used
  to challenge unlawful detention
• Least restrictive alternative doctrine mandates
  least drastic means be taken to achieve specific
  purpose

5
Mental Health Laws Admission to the Hospital

• Voluntary sought by patient or guardian
• Patients have right to demand and obtain release
• Many states require patient submit written
  release notice to staff
• Involuntary admission (commitment) made without
  patients consent
• Necessary when person is danger to self or
  others, and/or unable to meet basic needs as
  result of psychiatric condition
• Emergency involuntary hospitalization
• Commitment for specified period (1-10 days) to
  prevent dangerous behavior to self/others
• Observational or temporary involuntary
  hospitalization
• Longer duration than emergency commitment
• Purpose observation, diagnosis, and treatment
  for mental illness for patients posing danger to
  self/others

6
Patients Rights

• Right to treatment requires that medical and
  psychiatric care and treatment be provided to
  everyone admitted to public hospital
• Right to refuse treatment right to withhold or
  withdraw consent for treatment at any time
• Issue of right to refuse psychotropic drugs has
  been debated in courts with no clear direction
  yet forthcoming
• Right to informed consent based on right to
  self-determination
• Informed consent must be obtained by physician or
  other health care professional to perform
  treatment or procedure
• Presence of psychosis does not preclude this
  right

7
Issue of Legal Competence

• All patients must be considered legally competent
  until they have been declared incompetent through
  legal proceeding
• Determination made by courts
• If found incompetent, court-appointed legal
  guardian, who is then responsible for giving or
  refusing consent
• Implied consent
• Many procedures nurse performs has element of
  implied consent (e.g., giving medications)
• Some institutions require informed consent for
  every medication given

8
Rights Regarding Restraint and Seclusion

• Doctrine of least restrictive means of restraint
  for shortest time always the rule
• Legislation provides strict guidelines for use
• When behavior is physically harmful to
  patient/others
• When least restrictive measures are insufficient
• When decrease in sensory overstimulation
  (seclusion only is needed)
• When patient anticipates that controlled
  environment would be helpful and requests
  seclusion
• Recent legislative changes have further
  restricted use of these means and some facilities
  have instituted restraint free policies

9
Patient Confidentiality

• Ethical considerations
• Confidentiality is right of all patients
• ANA Code of Ethics for Nurses (2001) asserts duty
  of nurse to protect confidentiality of patients
• Legal considerations
• Health Insurance Portability and Accountability
  Act (HIPAA), 2003
• Health information may not be released without
  patients consent, except to those people for
  whom it is necessary in order to implement the
  treatment plan
• Exceptions
• Duty to Warn and Protect Third Parties
• Tarasoff v. Regents of University of California
  (1974) ruled that psychotherapist has duty to
  warn patients potential victim of potential harm
• Most states have similar laws regarding duty to
  warn third parties of potential life threats
• Staff nurse reports threats by patient to the
  treatment team

10
Child and Elder Abuse Reporting Statutes

• All states have enacted child abuse reporting
  statutes
• Many states specifically require nurses to report
  suspected abuse
• Numerous states have also enacted elder abuse
  reporting statutes
• Agencies receiving federal funding (i.e.,
  Medicare/Medicaid) must follow strict guidelines
  for reporting abuse of older adults

11
Tort Law Applied to Psychiatric Settings

• Protection of patients legal issues common in
  psychiatric nursing are related to failure to
  protect safety of patients
• Protection of self
• Nurses must protect themselves in both
  institutional and community settings
• Important for nurses to participate in setting
  policies that create safe environment

12
Negligence/Malpractice

• Negligence or malpractice is an act or an
  omission to act that breaches the duty of due
  care and results in or is responsible for a
  persons injuries
• Elements necessary to prove negligence
• Duty
• Breach of duty
• Cause in fact
• Proximate cause
• DamagesCause in fact
• Evaluated by asking except for what the nurse
  did, would this injury have occurred?
• Proximate cause or legal cause
• Evaluated by determining whether there were any
  intervening actions or individuals that were in
  fact the causes of harm to patient
• Damages
• Include actual damages as well as pain and
  suffering
• Foreseeability of harm
• Evaluates likelihood of outcome under
  circumstances

13
Determination of Standard of Care

• ANA has established standards for
  psychiatricmental health nursing practice and
  credentialing for psychiatricmental health RN
  and the advanced practice RN (ANA, 2007)
• Standards differ from minimal state requirements
• Nurses are held to standards of care provided by
  other nurses possessing the same degree of skill
  or knowledge in same or similar circumstances
• Hospital policies and procedures set up
  institutional criteria for care
• Substandard institutional policies do not absolve
  nurse of responsibility to practice on basis of
  professional standards of care

14
Nursing Intervention Suspected Negligence

• Most states require legal duty to report risks of
  harm to patient
• Nurse has obligation to report peer suspected of
  being chemically impaired
• Report to supervisor is requirement
• If nurse knows physicians orders need to be
  clarified or changed, it is nurses duty to
  intervene and protect patient
• Abandonment
• Legal concept may arise when nurse does not leave
  patient safely back in hands of another health
  care professional before discontinuing treatment

15
Avoiding Liability

• Respond to the client
• Educate the client
• Comply with the standard of care
• Supervise care
• Adhere to the nursing process
• Document carefully
• Follow up and evaluate
• Maintain a good interpersonal
• relationship with client and family