Learning Objectives
1. Define and describe the legal and ethical standards of healthcare and how they relate to nursing.
2. Explain the implications for nurses for the concepts of false imprisonment, abandonment of care, invasion of privacy, and confidentiality.
3. Define and discuss the purpose of a Nurse Practice Act. Name the components of a Nurse Practice Act.
4. State at least three functions of a State Board of Nursing.
5. Name some common-sense precautions that nurses can take against lawsuits.
6. State the benefits and limitations of the Good Samaritan Act.
7. Discuss the concept of professional boundaries.
8. Define and discuss the three major types of advance directives.
9. Define the types of people who are vulnerable to deficient or harmful care.
10. Differentiate between biological death and brain death.
11. State the rights and responsibilities of healthcare clients.
12. List the major provisions of the HIPAA legislation and state the overall goal of this legislation. Describe how this impacts nursing care.
IMPORTANT TERMINOLOGY
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advance directive |
ethics |
misdemeanor |
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alias |
euthanasia |
negligence |
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assault |
felony |
Nurse Practice Act |
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assisted suicide |
Good Samaritan Act |
slander |
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battery |
informed consent |
tort |
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biological death |
legal death |
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brain death |
liability |
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crime |
libel |
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endorsement |
malpractice |
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Acronyms |
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AHA |
LPN/LVN |
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AMA |
NCLEX-PN |
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CAT |
NCLEX-RN |
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CEH |
NCSBN |
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CEU |
PHI |
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CPR |
PSDA |
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EEG |
RN |
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EPHI |
ROI |
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HIPAA |
UNOS |
In the last topic discussed standards of practice,the Nightingale Pledge, and the Practical Nurse’s Pledge. Legal and ethical issues of nursing practice were introduced. This topic further explores legal and ethical issues and relates them to the concepts of nursing and healthcare.
Laws are formal written rules of behavior that govern conduct and ensure the protection of citizens. Ethics refers to moral principles and values that guide human behaviors. Ethics and ethical standards evolve in cultures where there exist the concepts of right and wrong. The healthcare system combines the practice of medicine and nursing with a complex system of laws, societal beliefs, and cultural values.
The ethical standards of the healthcare profession and the laws of the United States and Canada are carefully designed to protect both you and those you serve. You are responsible for becoming familiar with these legal and ethical standards before caring for clients.
LEGAL ISSUES OF NURSING PRACTICE
In the course of your activities as a student and later as a licensed nurse, you are held responsible for maintaining established standards of nursing care. You will encounter many situations involving legal responsibilities. In addition to avoiding those acts that all citizens know are illegal, you must not violate other important laws that are specific to healthcare.
TABLE 4-1. Common Sources of Law
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TYPE OF LAW |
GENERAL PURPOSE |
EXAMPLE OF LAW |
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Constitutional |
Law written as part of a local, state, or federal constitution |
Protection of right to free speech |
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Statutory |
Any law enacted by a legislative body |
Creation of Nurse Practice Act |
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Administrative |
Empowers agencies to create and enforce rules and regulations |
Development of State Boards of Nursing |
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Criminal |
Laws that define offenses that violate the public welfare |
Prosecution of violation of provisions of Nurse Practice Act |
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Civil |
Protects civil rights such as freedom from invasion of privacy and freedom from threats of injury |
Healthcare client charges nurse with invasion of privacy and violation of confidentiality laws |
For example, federal law requires that healthcare facilities keep records about the dispensing of narcotics. This law specifies that narcotics are to be given under the direction and supervision of a physician, osteopath, dentist, or veterinarian. In a hospital, all narcotics are kept double locked, and every dose or tablet must be accounted for. Violation of the Controlled Substances Act is a serious crime. Table 4-1 summarizes common sources of law and gives examples related to nursing and healthcare.
Legal Terminology
A crime is a wrong committed against a person or property or public good. A crime occurs when a law is violated. In a crime, intention to do wrong is also present. Crimes may be misdemeanors or felonies.
A felony is a serious crime. Healthcare workers can be convicted of felonies for such offenses as falsification of medical records, insurance fraud, theft of narcotics, or practicing without a license.
A misdemeanor is a crime that is considered not as serious as a felony. A misdemeanor is still a serious charge and may be cause for revocation of a nursing license. Possession of controlled substances may be either a misdemeanor or a felony as defined by the local, state, or federal laws.
Liability is the legal responsibility for one’s actions or failure to act appropriately. A crime may be the deliberate commission of a forbidden act or omission of an act required by law.
A nurse may be liable if a client receives the wrong medication and is harmed (an “act of commission”). Examples of other nursing crimes of commission would be participation in an illegal abortion, participation in euthanasia (“mercy killing”), and practicing nursing without a license or beyond the legal limits of your nursing practice.
A nurse also may be liable if a client did not receive a prescribed medication and was harmed (an “act of omission”). Crimes of omission include failure to perform a prescribed treatment, failing to report child or elder abuse, and failure to report a specified communicable disease or an animal bite.
A tort is an injury that occurred because of another person’s intentional or unintentional actions or failure to act. The injury can be physical, emotional, or financial. A tort involves a breach of duty that one person owes another, such as the duty of a nurse to care for a client. Examples of intentional torts include assault, battery, false imprisonment, invasion of privacy, and defamation. The example of an unintentional tort is negligence. Malpractice is defined as professional negligence.
Negligence is defined as harm done to a client as a result of neglecting duties, procedures, or ordinary precautions. Negligence is one of the most common causes of lawsuits by healthcare clients. Negligence describes the failure to act as a reasonable person would have acted in a similar situation. Negligence takes into account your educational level and experience. Thus, negligence is balanced against what another nurse with similar education and experience would have done in a similar situation. A nurse can be found negligent and be sued for damages for any of the following reasons:
• Performing nursing procedures that have not been taught
• Failing to follow standard protocols as defined by the facility’s policy and procedure manuals
• Failing to report defective or malfunctioning equipment
• Failing to meet established standards of safe care for clients
• Failing to prevent injury to clients, other employees, and visitors
• Failing to question a physician’s order that seems incorrect
Malpractice is the improper, injurious, or faulty treatment of a client that results in illness or injury. Harm that results from a licensed person’s actions or lack of actions can be called malpractice. A nurse commits malpractice when his or her conduct deviates from the normal or expected standard of behavior that would be performed by someone of similar education and experience in similar circumstances.
Healthcare professionals are held to higher standards than untrained individuals. Standards of practice are defined by a state’s Nurse Practice Act, written agency policies and procedures, documented standards of care, such as a nursing care plan, and the testimony of expert witnesses. Additional information regarding Nurse Practice Acts is found in the next section of this topic.
Assault is a threat or an attempt to do bodily harm. Assault includes physical or verbal intimidation. A gesture that the client may perceive as a threat is an assault if the client believes that force or injury may follow. Telling the client that you are going to restrain him in bed if he tries to get out of bed without assistance is an assault.
Battery is physical contact with another person without that person’s consent. Physical striking or beating is battery. Also considered to be battery may be the touching of a person’s body, clothing, chair, or bed. A charge of battery can be made even if the contact did not cause physical harm. Giving an injection that the client refuses is battery. Forcing the client to get out of bed can be considered both assault and battery. To protect nurses and other healthcare individuals from the charge of battery, clients sign a general permission for care and treatment. Before any special test, procedure, or surgery, clients sign another consent form. Informed consent is discussed below.
Consent for care is provided by the individual, parent, or guardian if the client is a minor, mentally retarded, or mentally incompetent. In an emergency, the law assumes inferred consent. Inferred consent means that in life-threatening circumstances, the client would provide consent for care.
Nursing Alert The nursing student never serves as a witness to any legal papers or documents.
Informed consent means that tests, treatments, and medications have been explained to the person, as well as outcomes, possible complications, and alternative procedures. Before any client receives routine treatment, a specialized diagnostic procedure, an invasive procedure, special medical or surgical treatment, or experimental therapy, he or she must give informed consent. Usually, the physician explains the situation and obtains consent. The physician and all healthcare workers must be reasonably satisfied that the client understands what will be done and what the expected or adverse results are likely to be. All teaching must be documented.
Key Concept All teaching must be documented.
The client or a legal guardian must understand and sign the consent form before the performance of any procedure. In certain extreme emergencies, no one may be available to give consent. In such cases, procedures may be performed without specific written or verbal consent; however, each facility will have specific protocols that will need to be followed. For example, if an unconscious client is admitted to an emergency room and needs immediate surgical intervention before family can be located, some facilities allow for two physicians to sign an emergency consent. In some cases, a court order to administer treatment is obtained.
The person who will perform any procedure is ultimately responsible for obtaining consent. As a nurse, you must confirm that the signed consent is in a client’s health record before performing any procedure. In cases of serious surgery or life-threatening procedures, physicians usually obtain consent. Students do not obtain consent or witness consent forms.
Nonconsensual physical contact may be required if the client is mentally ill, intoxicated, or endangering the safety of self or others.Legal protection in this type of circumstance relies heavily on thorough documentation. It is critical for the healthcare provider to describe the behavior of the client that resulted in the use of force. The documentation should specify that the situation required the type of restraint that was used. Excessive force is never appropriate.
False imprisonment or restraint of movement may be charged in certain situations, such as the use of unnecessary restraints or solitary confinement. By law, a person cannot be restrained against his or her will unless the person has been convicted of a crime or a court order exists permitting restraint. False imprisonment may be a result of either physical or chemical limitations.
Libel and slander relate to personal integrity. Libel refers to a written statement or photograph that is false or damaging. Special precautions must be taken to avoid libel when using email communications. The Internet and electronic communications have the potential of carrying personal conversations into the public domain.
Slander is the term given to malicious verbal statements that are false or injurious. Clearly, nurses must avoid untrue and unwise statements at all times. Slander can take the form of gossip and exaggerations, such as, “That nurse is lazy,” “The supervisor doesn’t know what she is doing,” or “Doctor X’s patients always have complications.” Defamation is an act that harms a person’s reputation and good name.
Abandonment of care is a legal term that implies that a healthcare professional has prematurely stopped caring for a client. For example, if a client cannot safely be left alone, you may be found liable if the client under your care is injured while unsupervised. If a home care client has an infection or stops taking medications, you may be found liable if you fail to report this information in a timely manner. To avoid the charge of abandonment, you NEVER leave your employment or clinical assignment, even in an emergency, without proper notification being given to your supervisors.
Invasion of privacy and confidentiality are of critical legal and medical concern. The right to privacy means that a client has the right to expect that his or her property will be left alone. Healthcare individuals may be charged with trespassing, illegal search and seizure, or releasing private information (even if the information is true). Remember, you are violating the law if you give out any information about a client without his or her written consent. Also, prevent clients and visitors from seeing other clients’ health records and private information. For example, be careful not to pull client information onto the computer screen where other clients can see it (Fig. 4-1).
Student nurses are often assigned research projects that contain a client’s medical history and personal information. Rather than using client names or initials, it is more prudent to use code numbers. If lost or misplaced, even your scratch notes can be the basis for a breach of confidentiality lawsuit. ALWAYS protect the client’s confidentiality.
NCLEX Alert Clinical situations on the NCLEX can include references to legal and ethical situations. To chose the correct option, you must understand the terms presented in this topic e.g. negligence, liability, legal death, HIPAA, advanced directive, etc. Your professional responsibility in these situations can be a component of the correct answer
HIPAA and Client Privacy
In 1996, the Health Insurance Portability and Accountability Act (HIPAA), Title II, was passed and serves as federal privacy regulation. HIPAA protects clients’ information and makes sure this information remains private. This legislation, although it protects clients, limits the ability to do medical research in some cases. It also adds to the facility’s cost of providing care.
FIGURE 4-1 · Computers are excellent tools for nurses, but they can be a source of loss of confidentiality for clients.
The “Security Rule” of this legislation deals specifically with (Electronic) Protected Health Information (PHI/EPHI). This information is defined as “any information concerning a client’s health status” or “any part of an individual’s medical record or payment history.” The rule states that each facility must have written privacy procedures; supervision of these procedures must be documented. Each facility must name a privacy officer. Only employees who “need to know” can legally access any client’s record. All employees must undergo documented ongoing confidentiality training and sign a confidentiality agreement annually. The facility must also have a contingency plan for emergency data backup, should a disaster occur. Internal audits must occur on a regular basis and disciplinary action taken against any staff member who violates privacy rules. In addition, severe financial penalties are levied against the facility if it does not follow these rules.
Nursing Alert A healthcare facility can legally release PHI under certain circumstances, such as suspected child abuse or abuse of a client by a healthcare worker.
The HIPAA, Title II act:
• Regulates who can have access to client information
• Sets standards for storage and transmission of client information
• Requires that healthcare facilities write policies allowing clients access to their own personal health information. (The client has the right to request correction of any errors.)
All clients or their caregivers are asked to sign a HIPAA statement on admission to a healthcare facility, whether an inpatient or an outpatient. This statement acknowledges that the client has seen the HIPAA regulations. The facility promises to abide by these regulations.
Key Concept As a nursing student or staff nurse, you will most likely be asked to sign a HIPAA confidentiality statement each year This certifies that you are familiar with HIPAA regulations and will follow their guidelines. Be aware that violation of HIPAA privacy practices is cause for termination of employment or of student status in most facilities.
Failure to comply with these standards may result in civil or criminal penalties. Detailed official information regarding this important legislation can be found on the Health and Human Services Website (see Web Resources on Point,1-.). Because confidentiality is so important, as is legislated by HIPAA, state, and individual healthcare agencies, all providers of healthcare must take precautions in their verbal and written communications, such as avoiding gossip, restricting conversations regarding clients to private, professional settings, and preserving the privacy of your clients at all times.
Violation of confidentiality or misuse of the health record is a violation of privacy laws (Fig. 4-2). If a client requests anonymity, just acknowledging the person’s hospitalization can be a violation of the law.
Effective January 2009, the Patient Safety and Quality Improvement Act of 2005, also known as the Patient Safety Act, establishes a voluntary reporting system which improves and enhances increased safety of clients. The goal of this act is to encourage the reporting and the subsequent analysis of medical errors and safety issues in a confidential manner without the fear of increased liability risk. As data are reported and analyzed, the information will yield a better understanding of what changes need to be made to promote client safety. For detailed information, go to the Website of Health and Human Services (see Web Resources on Point;-.).
FIGURE 4-2 · When interviewing clients, make sure to maintain privacy by waiting until visitors leave and closing doors.
