Chapter 2 Legal and Ethical Aspects of Nursing

Chapter 2 Legal and Ethical Aspects of Nursing Jeanelle F. Jimenez RN, BSN, CCRN Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc.

Overview of the Legal System • Laws Prescribe how a person should act in society § Sanction acceptable behavior and prohibit unacceptable behavior § Provide protection for all members of the health care system § Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 2

Overview of the Legal System • Criminal Law Conduct in issue is offensive to society in general § Conduct is detrimental to society as a whole § Involves public offenses (i. e. , robbery, murder, assault) § Law’s purpose is to punish for the crime and deter and prevent further crimes § Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 3

Overview of the Legal System • Civil Law Conduct violates a person’s rights § Conduct is detrimental to that individual § Involves an offense that is against an individual § Law’s purpose is to make the aggrieved person whole again, to restore them to where they were § Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 4

Overview of the Legal System • Two Ways Laws Are Established § Statutory law • Developed by federal, state, and local governments § Common law • Developed in response to specific legal questions brought before the court and usually follow precedent (previous rulings on an issue) Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 5

Overview of the Legal Process • Liability Legal responsibility § A nurse can be charged with civil or criminal liability depending on the particular circumstances surrounding the case § Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 6

Overview of the Legal Process • Legal Relationships § Accountability • Being responsible for one’s own actions § Liability • Legal responsibility § Legal Relationship • Nurse-patient relationship § When the nurse assumes responsibility for the patient’s care • Failure to provide care to the expected level of expertise gives rise to legal liability Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 7

Overview of the Legal Process • Legal Relationships § Advocate • One who will defend or plead a cause or issue on behalf of another • The nurse accepts the role of an advocate for the patient • A nurse advocate has a legal and ethical obligation to safeguard the patient’s interests Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 8

Overview of the Legal Process • Regulation of Practice § Standards of care • Acts that are permitted to be performed or are prohibited from being performed • Give direction to the practicing nurse, defining what should or should not be done for patients • Every nurse is obligated to know and follow the established standards of care • Failure to adhere to these standards gives rise to legal liability Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 9

Overview of the Legal Process • Regulation of Practice § Standards of care • The legal test is what a reasonably prudent (wise) nurse of similar education and experience would have done under similar circumstances. Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 10

Overview of the Legal Process • Regulation of Practice § Scope of nursing practice • Each licensed practical/vocational nurse must be familiar with his or her scope of practice • The nurse CANNOT use ignorance as an excuse • Every nurse needs to know what she or he can and cannot do while providing nursing care § Nurse practice acts • Define and limit the scope of nursing practice Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 11

Overview of the Legal Process • Regulation of Practice § Licensure • All licensed practical/vocational nurses must apply for licensure in the state in which they wish to practice • Applicants are carefully screened • Upon approval by the board, the applicant is eligible to take the computerized licensing examination at a testing center Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 12

Overview of the Legal Process • Regulation of Practice § Licensure • Once a license is granted, it can be suspended or revoked (taken away) for unprofessional, unethical, immoral, and/or criminal conduct § Interstate compact • Allows multistate practice of nursing • The nurse must be licensed in her or his home state, and privileges are then granted to practice in other states that have signed the interstate compact Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 13

Overview of the Legal Process • Legal Issues § Malpractice (professional negligence) • Commission § Doing an act • Omission § Not doing an act • Legal action that a nurse may be charged with for failing to meet the standards of care Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 14

Overview of the Legal Process • Legal Issues § Malpractice (professional negligence) • Elements that must be present: § § Duty exists: The nurse-patient relationship establishes a duty. Breach of the duty: The nurse fails to perform the duty in a reasonable, prudent manner. Harm occurs: This does not have to be physical injury. Proximate cause: The breach of duty was the proximate cause of the harm. Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 15

Overview of the Legal Process • Legal Issues § Malpractice (professional negligence) • Malpractice insurance § § § The nurse may want to purchase individual coverage even if the employing institution carries insurance Personal malpractice insurance provides more protection for the nurse while off and on duty Most institutions’ policies cover liability only if the nurse is on duty and acting within the proper capacity Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 16

Overview of the Legal Process • Patients’ Rights § The Patient’s Bill of Rights • Developed by the American Hospital Association in 1972 • Goal is to promote the public’s understanding of their rights and responsibilities as consumers of health care • Health Insurance Portability and Accountability Act of 1996 (HIPAA) Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 17

Overview of the Legal Process • Informed Consent A person agrees to allow a particular treatment based on full disclosure of the facts needed to make an intelligent (informed) decision § Consent must be obtained before any invasive treatment or procedure § Patient needs to be aware of the benefits of the treatment, the risks involved, any alternative treatments, and the consequences of refusing the treatment § Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 18

Overview of the Legal Process • Informed Consent The patient has the right to accept or reject the proposed care § Failure to secure informed consent may result in civil liability for battery § • Civil battery § Unlawful touching of a person; an intent to harm is NOT necessary Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 19

Overview of the Legal Process • Confidentiality The nurse has a duty to protect information about a patient no matter how that information is received § Failure to maintain confidentiality gives rise to legal liability, and legal remedies exist to address confidentiality breaches § Health Insurance Portability and Accountability Act of 1996 (HIPAA) set rules and limits on who can look at and receive health care information § Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 20

Overview of the Legal Process • Medical Records Medical records are NOT public documents § The information they contain must be guarded § Records may be used by both parties in a lawsuit to argue facts of the case § All entries in the medical record must be permanent, accurate, complete, and legible § Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 21

Overview of the Legal Process • Invasion of Privacy The right to be left alone and go unnoticed if the patient chooses § Legal liability may occur in § • • Exposing the patient’s body parts unnecessarily Discussing the patient inappropriately Disclosing information about the patient Using any unauthorized patient information Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 22

Overview of the Legal Process • Reporting Abuse The law prescribes when a health care professional must report certain information to authorities (certain communicable diseases, gunshot wounds, signs of abuse) § The health care professional is protected from liability when acting in good faith § Child Abuse Prevention Treatment Act of 1973 § • Act made reporting of child abuse mandatory • Health care professionals may face fines and/or imprisonment if they fail to report suspected cases of child abuse Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 23

Overview of the Legal Process • How to Avoid a Lawsuit § Provide compassionate, competent nursing care • Nurse-patient relationship must be one based on trust and respect • Use open and honest communication • Follow the standards of care and adhere to the scope of practice for a licensed practical/vocational nurse • Professional liability insurance • Disciplinary defense insurance • What can happen to your license? ? Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 24

Overview of the Legal Process • How to Avoid a Lawsuit § Good Samaritan Law • Provides immunity from liability in certain circumstances • Encourages assistance in emergencies occurring outside of a medical facility by providing protection against liability § Proper documentation • Medical record is used to prove that the standards of care were met (or were not met) • “IF IT ISN’T CHARTED, IT WASN’T DONE. ” Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 25

ETHICS Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 26

Ethical Aspects • Development of Ethical Principles § Ethics • Values that influence a person’s behavior • An individual’s feelings and beliefs about what is right and wrong § Customs • Habits, ways of acting • Members of a family expected to behave in a certain way • Influenced by religious teachings Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 27

Ethical Aspects • Development of Ethical Principles § Values • Personal beliefs about the worth of an object, idea, a custom, or an attitude • Develop over time and change as necessary • Influences behavior and decisions • Learned through experience, observation, and reasoning § Values Clarification • The process of self-evaluation that helps a person gain insight into individually held values Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 28

Ethical Aspects • Development of Ethical Principles Code of ethics § Ethical dilemmas § • Situations that do not have a clear right or wrong answer § § § Identify the problem Assess the situation completely Consider any ethical principles that might apply Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 29

Ethical Aspects • Ethical Principles § Respect for persons • All human life is sacred § § No one person is more important than another Each patient has the same worth as another and is always entitled to respect • Autonomy § § § Personal freedom of choice A right to be independent and make decisions Nurse does not have the right to make decisions for the patient Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 30

Ethical Aspects • Ethical Principles § Beneficence • Doing what is good • Nurse must promote the well-being of all patients § Nonmaleficence • To do no harm • Nurse has a ethical and legal duty to prevent harm to a patient § Justice • The concept of what is fair • All patients have the same right to nursing care Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 31

Ethical Aspects • Code of Ethics Serves as a way to regulate the actions of nurses and gives guidelines for ethical behavior § Promotes competent, trustworthy, and accountable health care practitioners in order to safeguard society § Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 32

Ethical Aspects • Reporting Unethical Behavior § Unethical behavior • Failing to perform the duties of a competent, caring nurse § Each member of the nursing profession has a duty to report behavior that does not meet the established standards • Follow the proper chain of command • Explain the facts as clearly as possible • Documentation of the incident: objective, accurate, when and where, other pertinent facts Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 33

Ethical Aspects • Ethical Issues Practitioner-Assisted Suicide (PAS) § Form of active euthanasia § The practitioner taking an active role in helping to end a patient’s life § • Legal status is unsettled • ANA has taken a firm stand against PAS § States it is not consistent with the philosophy of nursing • Right to autonomy and the right to self-determination are issues used to support PAS Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 34

Ethical Aspects • Ethical Issues § Right to refuse treatment • A competent adult has the right to determine what does or does not happen to him or her § Even if the refusal may or will result in death • Advance directive § Specifies what life-saving treatments he or she does or does not wish to have • Living will § Becomes effective when the patient is incapacitated Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 35

Ethical Aspects • Ethical Issues § Right to refuse treatment • Health care proxy § Durable power of attorney § A person to make decisions regarding medical treatment if the patient is unable to make them Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 36

Ethical Aspects • Do Not Resuscitate Orders The patient is usually incapacitated with little hope of recovery § Physician will consult with the family before writing a DNR order § Nurse has a duty to follow the order § Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 37

Ethical Aspects • Refusal to Treat § The nurse cannot refuse to care for a patient because she disagrees with the decisions the patient makes • Nurse does not have to participate in the procedure but cannot refuse to provide care after procedure • Do not abandon the patient, but ask for another assignment Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 38

Ethical Aspects • Refusal to Treat § The nurse DOES NOT have the legal right to refuse to care for a person with an infectious disease • Standard precautions should be applied to every patient and therefore the nurse is at no greater risk • The patient has the right to receive care, and the nurse has the responsibility to provide care Mosby items and derived items © 2011, 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. , an affiliate of Elsevier Inc. Slide 39