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Legal and Ethical Issues in Pediatrics

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Title: Legal and Ethical Issues in Pediatrics


1
Legal and Ethical Issues in Pediatrics
  • Nataliya Lishchenko

2
Legal Consideration
  • The same legal problem may be solved different in
    different states
  • Different Sources of Law

3
Sources of Law Nursing Practice
  • Statutory law
  • From the federal and state legislatures
  • Violations are criminal offenses and punishable
    by fines or imprisonment
  • Common law
  • From judicial decisions (res judicata- the
    thing is decided, stare decisis let the
    decision stand)
  • Administrative law
  • Prescribed by administrative agencies

4
Federal Statutes Related to Nursing Health Care
  • Mandate a minimum standard of care in all
    settings that receive federal funds (Medicare,
    Medicaid)
  • Emergency Medical Treatment Active Labor Law
    (EMTALA)
  • Prohibits refusal of care for indigent
    uninsured patients seeking medical assistance in
    emergency departments
  • Applicable to nonemergency facilities such as
    urgent care clinics
  • Americans With Disabilities Act
  • Prohibits discrimination against persons with
    disabilities
  • Patient Self-Determination Act of 1990
  • Requires federally funded hospitals to inform
    adult patients in writing about their right to
    make treatment choices

5
Federal Statutes Related to Nursing Health Care
  • Health Insurance Portability Accountability Act
    of 1996 (HIPAA)
  • Intent of this law is to ensure confidentiality
    of the patients medical records the statute
    sets guidelines for maintaining the privacy of
    health data

6
Statutory Law State Statutes
  • State Nursing Practice Act and Board of Nursing
    Rules Regulations
  • Define the scope and limitations of professional
    nursing practice
  • Vary from state to state but have common elements
  • Penalties for violations
  • Formal reprimand
  • Period of probation
  • Fines
  • Limiting, suspending, or revoking license

7
Statutory Law Reporting Statutes
  • Child Abuse Prevention and Treatment Act and
    Reporting Statutes
  • Mandate reporting specific health problems and
    suspected or confirmed abuse
  • Health professionals must report under penalty of
    fine or imprisonment for failing to do so
  • Infant and child abuse
  • Dependent elder abuse
  • Specified communicable diseases

8
Civil Law
  • Negligence Failure to act in a reasonable and
    prudent manner
  • Malpractice Failure of a person with specialized
    education and training to act in a reasonable and
    prudent manner

9
What is Informed Consent?
  • In 1914, Justice Benjamin Cardozo stated, Every
    human being of adult years and sound mind has a
    right to determine what shell be done with his
    own body (Schloendorff v. Society of N.Y.
    Hospital)
  • More about IC
  • http//www.ama-assn.org/ama/pub/category/4608.html

10
Definition
  • Informed Consent (IC) is the duty of a health
    care provider to discuss the risks and benefits
    of a treatment or procedure with a client prior
    to giving care

11
IC must include the following
  • The nature of the procedure
  • The risks and hazards of the procedure
  • The alternatives to the procedure
  • The benefits of the procedure

12
When IC is Not Required
  • In case of emergency situation (for minor or
    adult) A MINOR is defined as a person who has not
    yet obtained the age at which she or he is
    considered to have the rights and
    responsibilities of an adult (Alabama , Nebraska
    and Wyoming 19 y.o., all other states 18
    y.o.).
  • It is prudent to obtain the IC from the
    adolescent in case if health care providers have
    made a reasonable attempt to contact the child
    parent

13
When IC is Not Required
  • Many states allow the evaluation and treatment of
    a child for suspected physical or sexual abuse
    without the informed consent of a parent or
    guardian.
  • Photographing and taking an X-Ray (Utah)
  • In case of forensic examination (do not force or
    restrain the child to perform genital or rectal
    examination)

14
When a minor can consent for care?
  • Care involving pregnancy, contraception, or
    treatment of STD
  • Drug and alcohol treatment
  • In some states emancipated children can make
    their health care decisions by themselves

15
Emancipation
  • Emancipation is the legal recognition that the
    minor lives independently and is legally
    responsible for his or her own support and
    decision making.
  • Can occur through an official court proceeding
  • In some states, a minor can automatically become
    emancipated by marrying, joining the military, or
    becoming a parent before the age of majority
  • Some states do not officially recognized any form
    of emancipation

16
When a minor can consent for care?
  • Mature Minor Doctrine (in case if the minor has
    not achieved emancipation) a minor can consent
    to care as long as the individual demonstrates
    the maturity to understand the risks and benefits
    of the treatment

17
Parental Consent after Divorce
  • After divorce, the ability to consent for medical
    care rests with the parent who has been granted
    legal custody by the divorce decree ( the legal
    document approved by the court that grant
    divorce, divides marital property, and specifies
    child custody)
  • Legal custody v. physical custody

18
Refusal of Medical Care by Parent or Child
  • Religious beliefs - state can make legal
    decision for the child
  • PARENS PATRIE is a legal rule that allows the
    state to make decision in place of parents when
    they are unable or unwilling to provide for the
    best interest of the child.

19
Refusal of Medical Care by Parent or Child
  • Some states use child abuse statutes that make
    medical neglect a form of abuse as legal
    justification to take custody of a child who
    needs medical care.
  • The religious exemption clause only prevent the
    parents from being prosecuted for medical
    neglect.

20
Obtaining IC under Special Circumstances
  • Consent for donation of tissues or organs
  • Consent for genetic testing
  • Consent for medical experimentation with children

21
Consent for Donation of Tissues or Organs
  • If a child is too young, the parent or legal
    guardian may consent for the child
  • Three requirement for the minor to be a donor
  • The parent who is consenting must be aware of the
    risks and benefits
  • The child primary caregiver must be able to
    provide emotional support for the child
  • There must be a close relationship between the
    donor and the recipient

22
Consent for Genetic Testing
  • Dilemma created by new technology
  • The benefits and the risks should be discussed
    with a child if appropriate
  • Parents or guardian can consent for the testing
  • Genetic testing should not be performed on a
    child unless the results of the test will serve
    the best interests of the child

23
Consent for Medical Experimentation on Children
  • All research facilities that receive federal
    funds must comply with federal regulations that
    require review of all experimental protocols by
    an Institutional Review Board (IRB) (Code of
    Federal Regulations, 1983).
  • Federal regulations require the consent of one or
    both parents and the assent of the child,
    depending on the amount of the potential risk and
    benefit associated with the treatment or
    procedure.

24
Confidentiality
  • The right to confidential health care is
    protected by the US Constitution, federal and
    state laws, and the ethical codes of health care
    professionals.
  • Confidentiality is an essential part of the
    relationship between client and health care
    provider
  • Nurse has a duty of confidentiality (disciplined
    by both employer and state board of nursing)

25
When a Minor can Receive Confidential Care
  • Contraception, treatment of
  • STD
  • Drug and alcohol treatment
  • Mental health care
  • HIV testing

DEPENDS ON STATE LAWS AND REGULATIONS
26
When a Health Care Provider Can Breach
Confidentiality
  • There are 4 exceptions
  • Mandatory reporting laws for child abuse
  • Mandatory injury reporting laws that apply to all
    clients who are injured by a weapon or criminal
    act
  • Public health law that require reporting
    infectious diseases to the local health
    department
  • A duty to warn third parties

27
The End
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