Legal Issues in Nursing and Health Care

1. Legal Issues in Nursing and Health Care

2. Why is it important to understand the legal issues that impact nursing practice? • Nurses are constantly faced with the challenge of making difficult decisions regarding good and evil or life and death

3. Nurses have a responsibility to: • Understand the legal obligations when caring for clients • Understand the legal limits influencing daily practice • Protect the client’s rights • Protect themselves from liability

4. Types of Law • Statutory Law • Created by elected legislators (Congress, state legislatures) - STATUTES • Can be either criminal or civil • Example: Nurse Practice Acts (NPA), Emergency Medical Treatment and Active Labor Act (EMTALA) • Common Law • Created by judicial bodies as a result of legal cases • Examples: “Informed consent,” “abortion rights,” client’s right to refuse treatment

5. Standards of Care • Standards of care are guidelines for nursing practice, they delineate scope of practice, function and role of the nurse. They are defined in various ways: • Nurse Practice Acts • State Boards of Nursing of each state • Federal/ state laws regulating hospitals and health care institutions • Professional and specialty nursing organizations • Facility policies and procedures

6. Scope of Practice • Defined by: • Nurse Practice Acts • Code of Ethics • Organization Standards • Policy and Procedure Manuals

7. Federal Statutes • ADA (Americans with Disabilities Act) – is to end discrimination against qualified persons with disabilities by removing barriers that prevent them from enjoying the same opportunities available to persons without disabilities • Emergency Medical Treatment and Active Labor Act (EMTALA) – is to prohibit refusal of care for indigent and uninsured patients seeking medical assistance in the ED • Mental Health Parity Act • Patient Self Determination Act (PSDA) • Advance Directives (“living will”, “DNR”, “durable power of attorney”) • Uniform Anatomical Gift Act – organ’s donation • HIPAA (Health Insurance Portability and Accountability Act) – to ensure confidentiality of the patient’s medical records • Restraints

8. State Statutes • Licensure - regulated by each state. Licensed by State Board of Nursing (minimum education requirements, successful completion of licensure exam (NCLEX). Can be suspended or revoked) • Good Samaritan Laws (1998) - protects health professionals stopping to help in emergencies • Public Health Law - laws created to promote health and reduce health risks in communities (school immunizations, reporting communicable diseases) • Uniform Determination of Death Act (1980)- has been adapted in most states - changed standards for determining death • Physician-Assisted Suicide (1994) - Oregon passed the Oregon Death with Dignity Act - first statue that permitted physician assisted suicide

9. State Statutes • Nurse Practice Acts: • Establish education requirements • Distinguish between nursing and medical practice • Define the nurses scope of practice • Define nursing practice more specifically • All nurses are responsible for knowing their Nurse Practice Act

10. 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

11. Common Law Issues in Nursing Practice • Consent • A signed consent is required for all routine treatment, hazardous procedures, some treatments, and research • Abortion Issues • Includes a woman’s right to have an abortion • Student Nurses • Student nurses are liable if their actions cause harm to patients (liability is usually shared) • Malpractice Insurance • Professional insurance, contract w/ nurse and insurance company if nurse is sued for professional negligence or medical malpractice • Abandonment and Assignment Issues • Short staffing - Inadequate staffing/ patient ratios • Floating - Assignments to a department where the nurse does not normally work • Physician’s orders - Nursing judgment when carrying out physician orders

12. 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

13. 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

14. 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

15. 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

16. 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)

17. 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

18. 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

19. Consents • A client’s signature implies that the client has been thoroughly informed about the procedure. • Consent must be witnessed appropriately • Not considered informed if client is: • Confused • Unconscious • Mentally incompetent • Under the influence of sedatives, including preoperative medications

20. Legal signatures on consents • Who can legally sign a consent: • Individuals of legal age - 18 • Under legal age but have a valid marriage certificate • Emancipated minors (certain states) • A parent or legal guardian of a minor • A spouse or next of kin for an adult who is unconscious or mentally incompetent • Conservators • Court ordered consent • Telephone consents • Emergency consents

21. Civil Law Issues in Nursing Practice • Tort - a civil wrong against an individual or property. May or may not be on purpose . It violates another person’s right’s • Intentional • assault - attempt to threaten or harm another person (Ex: force feeding) • battery - intentional physical contact with a person without consent ( Ex: touching without the other person’s permission) • invasion of privacy - right to confidentiality (Ex: release of client’s medical information) • defamation of character - ridiculing others, slander, may apply to client or a colleague (Ex: attack the reputation of a colleague) • false imprisonment - confined or held against a person’s will (Ex: preventing a person from leaving the hospital voluntarily) • Unintentional • Negligence - an occasion when a person owes a duty to another and, through failure to fulfill that duty, causes harm • Malpractice - is professional negligence

22. For a court to recognize a claim of malpractice or negligence, four legal elements must be present • There must be a duty owed to the client by nurse • The nurse must breach the duty • The breach of duty must be the cause of the damage • There must be actual damage to the client

23. Risk Management • A system for ensuring appropriate nursing care and identifying hazards before harm is done to a client. • Steps in risk management • Identify possible risks • Analyze those risks • Act to reduce the risk • Evaluate the steps taken • Incident/occurrence reports

24. To Decrease Chance of Liability • Caring, respectful attitude • Follow standards of care • Give competent care • Communicate with other health care workers • Develop a good therapeutic caring relationship (rapport) • Document, document, document (accurately, completely, timely, factually, legibly) • Stay current with your knowledge of your practice • Know your clients • Confidentiality • Informed consent • Physician orders • Malpractice insurance

25. Legal Issues and Implications for Nurses Objectives • Discuss how the Professional RN can safely practice within the NJ Statues and Board of Nursing Regulations in an unstable economy. • Review how to safely delegate to other members of the health care team. • Discuss how the Professional Nursing Organizations keep the profession of nursing safe by monitoring legislation and the regulatory process.

26. Legal Issues and Implications for Nurses • Members of the Board of Nursing • Appointed by the Governor • 13 members= 6 RNs; 2LPNs; 1APN; 3 public members; and 1 State Government official • Marietta Cahill, CNM, MSN,RN • Irma Bojazi, RN, BSN, MPA • Leo-Felix Jurado PHD-c, RN, CAN, APN,C • Patricia Murphy, PHD, RN, APN • Saundra Austin-Benn, MSN, RN, APN, BC • Joni Jones, RN, BC

27. Legal Issues and Implications for Nurses Members (continued) • Constance Wilson LPN • Karen Rodriquez LPN • Avery Hart, MA, LCSW, PHD (Public Member) • Vacant (Public Member) • Vacant (Public Member) • Noreen D’Angelo, MS, RN (State Member) • Executive Director George Hebert RN, MA

28. Legal Issues and Implications for Nurses • Mission • The mission of the New Jersey State Board of Nursing is to protect the health and safety of the public through effective public policy, competent and ethical nursing practice, and exceptional customer service. The Board accomplishes its mission in an environment characterized by openness, trust and integrity

29. Legal Issues and Implications for Nurses • VISION • Foster public protection • Eliminate artificial barriers to licensure and practice • Respond to changes in the health care environment • Ensure consumer protection from fraud and abuse • Collaborate with all communities of interest • Value innovation and embrace change • Promote communication internally and externally • Utilize advanced information systems and technology • Exceed customer expectations • Excel in delivering effective services • Provide employees with the opportunity for meaningful work in an atmosphere of shared commitment

30. Legal Issues and Implications for Nurses • Board of Nursing Roles • Primary role is to protect the public • Licensing/Endorsements APN/RN/LPN • Certification of SANE/Forensic Nurses • Certification HHA • Certification of Massage, Bodywork and Somatic Therapy • Development of the Standards (Scope) of Practice APN/RN/LPN

31. Legal Issues and Implications for Nurses Roles (continued) • Development of Rules and Regulations • Criminal Background Checks • Contact hour verifications for licensure (30/renewal) • Disciplinary Action

32. Legal Issues and Implications for Nurses Path of State Legislation Definitions Law- Bill which has completed those 7 Steps Statute- Another name for law Rules and Regulations- Essentially terms are used interchangeably. Specific to a Division/Board. They are the guidelines written to outline and/or enforce the law

33. Legal Issues and Implications for Nurses Path of State Legislation Definitions (cont) Resolution-express sentiments, create and empower temporary authorities and/or regulate internal legislative organizations Policy-Principals that govern action toward a goal Appropriations- the $,$$$,$$$

34. Legal Issues and Implications for Nurses • Path of State Legislation • 7 Steps from bill drafting to law • Identify an issue or problem • Nurses have opportunities to have influence along the way

35. Legal Issues and Implications for Nurses Path of State Legislation Step 1 Drafting a Bill • Legislator sponsors a bill at the suggestion of a constituent , interest group, public official or the Governor • Co-Sponsors- “the more the better”! • Office of Legislative Services provides research and drafting assistance

36. Legal Issues and Implications for Nurses Path of State Legislation Step 2 Introduction of the Bill • During the legislative session the sponsoring legislator gives the bill to the Secretary of the Senate or Clerk of the General Assembly • The bill is read (1st reading) • The bill is printed and released to the public

37. Legal Issues and Implications for Nurses Path of State Legislation Step 3 Committee Reference and Action • President of the Senate and/or the Speaker of the Assembly refers the bill to a committee for review • The Committee Chair schedules the bill for a open public hearing in committee • Committee will report bill to House as is or with amendments or as a substitute bill

38. Legal Issues and Implications for Nurses Path of State Legislation Step 4 Second or Third Reading • Bill is reported to the floor and title is read aloud for the second reading • May now be amended from floor • President/Speaker schedules third reading

39. Legal Issues and Implications for Nurses Path of State Legislation Step 5 House Vote • Passes each House when approved by a majority of authorized members- 21 in Senate and 41 in Assembly • Final legislative approval only when passed by both Houses in identical form.

40. Legal Issues and Implications for Nurses Path of State Legislation Step 6 Governor’s Action • Sign • Conditional Veto • Veto • Veto line items of appropriation bills

41. Legal Issues and Implications for Nurses Path of State Legislation Step 7 Law • A bill becomes law upon the Governor’s signature or after 45days if no action is taken • No action on bill passed within the last 10 days of legislative session, fails to become law • A vetoed bill may become law by a 2/3 override vote

42. Legal Issues and Implications for Nurses • Board of Nursing Laws (Statutes) • Definitions • Appointments • Application fees HHA • Oral Competency for HHA • Background Checks for HHA • Qualification/disqualifications for certifications HHA • Assumption of costs for background checks HHA • Conditions for issuance of biennial recertification HHA • Required Language on certificate HHA • Rules and Regs HHA • False sworn statement fines • Alternative to Discipline Program for nurses-definition • Review of Program after 5 years • Revision of fees construction of act • Rules and Regs Alternative to discipline • Secretary-treasurer and executive secretary bond accounts and reports

43. Legal Issues and Implications for Nurses Statutes(continued) • Professional Nurses • Practical Nursing • School of Professional Nursing • Renewal of certificates of accreditation • Violations of the act • Repeals • Short title APN • Certification required APN • Certification requirements • Interim certification • Permitted duties of APN • Provision administration of certain non controlled drugs to home health patients • Standards for joint protocols applicable to ordering, prescription of controlled dangerous substances • NJ Board of Nursing additional powers and duties • Adoption of Standards • Review of chart records of patients treated by APNs

44. Legal Issues and Implications for Nurses • NJ Board of Nursing Regulations • Programs in Nursing Education • Licensure by Examination RN/LPN • (reserved) • Licensure by Endorsement RN/LPN • General Requirements of Licensure; License Renewal; Fee Schedule • Nursing Procedures • Certification of APNs • Nursing Practice • Forensic Nursing-SANE • Reserved • Reserved • Reserved • Nurse Anesthetists • Homemaker Home Health Aides • Reserved • Massage, Bodywork and Somatic Therapy

45. Legal Issues and Implications for Nurses • Know your Standards of Practice • I-The collection of data about the health status of the patient/client is systematic and continuous: the data are accessible, communicated and recorded. • II-Nursing Diagnoses are derived from the data about the health status of the patient/client. • III-The plan of nursing care includes goals derived from the nursing diagnoses

46. Legal Issues and Implications for Nurses • Standards of Practice (continued) • IV- The plan of nursing care includes assessing priorities and prescribing nursing approaches or measures to achieve the goals. • V- Nursing actions provide for the patient/client participation in health promotion, maintenance and restoration. • VI- Nursing actions assist the patient/client to maximize his health capabilities.

47. Legal Issues and Implications for Nurses • Standards of Practice (continued) • VII- The patient’s/client’s progress or lack of progress toward goal achievement is determined by the individual and the nurse. • VIII- The patient’s/client’s progress or lack of progress toward goal achievement determines the reassessment; the recording of priorities, the setting of new goals and the revision of the plan of nursing care.

48. Legal Issues and Implications for Nurses • Decision Making Model Algorithm: • Is the act consistent with your scope of practice in the New Jersey Nursing Practice Act? Do the Board's regulations address this specific act?(This may be all the information you need to make your decision. If not, continue to the next step.) Resource documents you might need include: a. Nursing Practice Act: N.J.S.A. 45:11-23, 11-23, 46: b. Delegation Rule: N.J.A.C. 13:37-6.2; c. Standards of Nursing Practice from your professional nursing organization; d. Board Licensed Practical Nursing Standards of Practice and Board Guidelines, such as the LPN Role in IV Therapy-Available upon request. If NO, the act is NOT within your scope of practice without the above. If YES, continue to the next step. • Is the activity authorized by a valid order, an in accordance with established institutional/agency or provider protocols, policies and procedures? The nurse is accountable for clarifying any order or treatment regimen believed to be inaccurate or contraindicated by consulting with the licensed prescribing practitioner, and notifying the prescribing practitioner when the RN makes a decision not to administer the medicine or treatment. If NO, the act is NOT within your scope of practice without the above. If YES, continue to the next step. • Is the act supported by research data from nursing literature and/or research from a health related field? Has a national nursing organization issued a position statement on this practice? If NO, the act is NOT within your scope of practice without the above. If YES, continue to the next step. • Do you possess the knowledge and clinical competence to perform safely? Documentation to validate your educational and clinical competence should be maintained for a four year period. If NO, the act is NOT within your scope of practice without the above. If YES, continue to the next step. • Is the act to be performed within accepted "standards of care" which would be provided in similar circumstances by reasonable, prudent nurses with similar education and clinical skills? Nurses are accountable for knowing and conforming to their scope of practice in the Nursing Practice Act, Board regulations, and any other State and Federal laws impacting their practice. If NO, the act is NOT within your scope of practice. Performance of the act may place the patient and the nurse at risk. If YES, continue to the next step. • Are you prepared to assume accountability for the provision of safe care? If NO, the act is NOT within your scope of practice. If YES, you may perform the act based upon a valid order in accordance with the institution/agency or provider's established protocols, policies and procedures.

49. Legal Issues and Implications for Nurses • Scope of Practice Decision-Making Algorithm • Seven Steps • 1. Is the act consistent with your scope of practice and the Rules and Regulations in the New Jersey Board of Nursing Practice Act? • YES: • CONTINUE • NO: STOP

50. Legal Issues and Implications for Nurses • Scope of Practice Decision-Making Algorithm • 2. Is the act consistent with the Board's Guidelines regarding nursing practice? • YES: • CONTINUE • NO: STOP