Chapter 4: Legal Aspects of Nursing

1. Chapter 4: Legal Aspects of Nursing Bonnie M. Wivell, MS, RN, CNS

2. The U.S. Constitution • Ensures order • Protects individuals • Resolves disputes • Promotes the general welfare • Branches • Executive: Charged to implement law (President) • Legislative: Charged to create law (Congress) • Judicial: Charged to interpret law (Supreme Court)

3. American Legal System Laws are rules of conduct that are authored and enforced and hold people accountable for compliance Common Law: decisional, judge-made Statutory Law: legislative process Administrative Law: legislative branch delegates authority to government agencies to create laws Administrative cases result when a person violates the rules and regs established by this law (i.e. RN or MD practices without a valid license) Civil Law: enforces rights of individuals Criminal Law: protects society

4. Nursing as a Regulated Practice • Licensing is to protect the public health, safety, and welfare • All states have nurse practice acts which are statues that define and control nursing • Defines practice of a professional nursing • Sets minimum educational qualifications and other requirements for licensure • Determines legal titles & abbreviations nurses may use • Provides for disciplinary action of licensees for certain causes • State board of nursing • Responsible for administering and enforcing nurse practice act in its state

5. ANA Urges The Use of the Following Content Differentiation between advanced and generalist nursing practice Authority to regulate advanced nursing practice including prescription writing Authority to oversee unlicensed assistive personnel Clarification of nurse’s responsibility for delegation to & supervision of others Support of mandatory licensure for nurses while retaining flexibility for changing nature of nursing practice

6. Executive Authority of SBN Governor (or state executive) delegates responsibility for administering the nurse practice act to an executive agency – the State Board of Nursing State Board of Nursing consists of RNs, LPNs, & Consumers appointed by governor Functions Executive: administer the nurse practice act Legislative: adopt rules to implement the act Judicial: authority to deny, suspend, or revoke a license or otherwise discipline a licensee or deny application for licensure

7. Licensing All states have a mandatory licensure law for the practice of nursing to safeguard the public Has the power to discipline for performing professional functions in dangerous manner Practicing while impaired #1 reason for license revocation, suspension Peer assistance programs for substance abuse; voluntary alternative to suspension or revocation of license Minimum criteria for nursing education programs Schools of nursing must be state approved to operate National approval demonstrates higher than minimal standards

8. Licensure Examinations National Council Licensure Examination: NCLEX-RN (Since 1978) Tests critical thinking and nursing competence in all phases of the nursing process NCSBN develops tests, updates, validates and sets minimum scores Since 1994 computerized adaptive testing Test plan: https://www.ncsbn.org/1287.htm Licensure by endorsement (since 1944) RNs can practice in other states without having to retake another licensure exam Must submit proof of licensure & pay fee

9. Trends in Licensure Society mobile: traveling nurse, telehealth NCSBN developed mutual recognitionmodel—license in one state of residency yet practice in other compact member state without additional licenses Nurse Licensure Compact (NLC) started 2000 with Utah, Texas Wisconsin & by mid 2008, 23 states had joined https://www.ncsbn.org/nlc.htm Global perspective of licensure on NCSBN agenda—recruitment from other nations controversial. NCSBN began administering NCLEX internationally to competent nurses applying for U.S. licensure in January 2005.

10. Legal Risks in Nursing Practice Malpractice: greatest legal concern Negligence—failureto act as a reasonably prudent person would have acted in similar circumstances Commission = doing something that should not have been done Omission = failing to do things that should have been done Central question in any charge of malpractice “Was the prevailing standard of care met?”

11. Legal Risks in Nursing Practice • Malpractice claim, evidence presented to jury to determine if elements of liability are present. • Consider: • Prevailing standards of care: what another prudent nurse would have done • Expert witness testimony • SOC that prevailed at the time • National standards of nursing practice • Patient record • Direct testimony of patient, nurse, and others

12. Prerequisite of a Malpractice Action Nurse (defendant) has specialized skills & knowledge, & through practice causes the patient (plaintiff) injury Patient proves nurse is liable with all following elements Nurse has assumed duty of care (responsibility for pt’s care) Nurse breached duty of care by failing to meet SOC Failure of nurse to meet SOC was proximate cause of the injury Injury is proved Monetary damages are awarded when plaintiff prevails In past, MD or hospital paid damages Nurse liability has risen due to increased expertise, autonomy and authority

13. Case Summary from 1995-2001 • Acute Care Hospitals = 60% • Nursing Homes/Rehab/TCU = 18% • Psychiatric Settings = 8% • Home Health = 2% • MD Offices = 2% • APN cases = 9%

14. Nurse Liability Six major categories Failure to follow standard of care Failure to use equipment in responsible manner Failure to communicate Failure to document Failure to assess and monitor Failure to act as a patient advocate Note: student nurse errors & omissions may also be considered by courts as malpractice

15. Delegation The nurse is ultimately responsible for acts he/she delegates ANA’s Code of Ethics for Nurses states “The nurse is responsible and accountable for individual nursing practice and determines the appropriate delegation of tasks consistent with the nurse’s obligation to provide optimum patient care.” RNs delegate care (tasks), but not nursing process; cannot delegate assess. & eval. Most debated area: medication administration to unlicensed assistive personnel (22 states allow) Note: State nurse practice acts do not give delegation authority to LPNs

16. 5 Rights of Delegation • Right task • Right circumstances • Right person • Right direction/communication • Right supervision/evaluation

19. Assault & Battery Assault: threat or attempt to make bodily contact without another person’s consent; causes fear that battery about to occur Example: Threat to give patient vitamin injection if does not eat Battery: assault carried out, impermissible touching; actual harm may or may not occur Example: Give pt. vitamin injection against their will Patients have the right to refuse treatment, meds, etc.

20. Informed Consent Must be given voluntarily—freedom to accept or reject Must be given by a competent person with capacity to understand—minors, under influence of drugs/alcohol, or mental deficits consent by parent, spouse, court-ordered guardian/proxy 3. Must be given enough information to make a decision

21. Confidentiality Code of Ethics for nurses “the nurse has a duty to maintain confidentiality of all patient information..” Exceptions: Discussing with others involved in patient care, quality assurance, legal mandates, third party payers Privileged communication: lawyers, clergy Duty to report: child abuse, gunshot wounds, threats to another, vulnerable adult abuse, certain communicable diseases

22. HIPPA Requires all health care providers to ensure patient privacy and confidentiality Patient protections Patient can see & obtain medical records Providers must give written notice of pt. rights Limitations placed on time records can be retrieved, what information shared, who can be present when it is shared

23. Evolving Legal Issues & the Nurse Role changes in health care--advanced practice nursing; based on state’s nurse practice act Prescription authority-prescription writing Supervision of unlicensed assistive personnel—certified nursing assistants Payment mechanisms for nurses practicing in non-traditional roles and in advanced practice

24. Patient Self-Determination Act Applies to acute care & LTC that receive Medicare and Medicaid & encourages patients to consider which life-prolonging options they desire Acute care and LTC facilities must provide Written information about rights Ensure compliance with advanced directives Educate staff & community on advanced directives Document in the medical record advanced directives

25. Prevent Legal Problems Practice in a safe setting Employs appropriate number and skill mix of personnel Has P&P that promotes quality improvement (Risk management and JC) Keeps equipment in good working order Provides orientation and continuing education Communicate with providers, patient, family Document accurately, in timely manner, and concisely If not documented, not done Rapport with patient & family can be protection from lawsuits Meet the standard of care in facility, trends in area of practice, ANA Nursing: Scope & Standards of Practice; Stay within own limits of education, expertise & state’s Nurse Practice Act

26. Liability Insurance • Carry own nurses’ liability insurance • Nurses Service Organization (NSO) www.nso.com/nursing5 or call 1-800-2137-1500 • National Practitioner Data Bank – 1986 • Encourages identification and discipline of practitioners who engage in unprofessional behavior • Reported problem areas for nurses • Monitoring patients • Implementing treatments • Medication problems

27. Positive Interpersonal Relationships Important Prevent disgruntled patients; key is positive relationship with patient/family Provide personalized care; include in planning; show compassion & caring (RBC) Avoid criticizing or blaming health care providers Maintain a concerned and non-defensive manner

28. 7 Legal Tips Administer meds properly Monitor for & report deterioration Communicate effectively Delegate responsibly Document accurately & timely Know & follow facility policies & procedures Use equipment properly Austin,S.(2008). Seven legal tips for safe nursing practice. Nursing2008. March 2008, p 34-40.

29. Chapter 5: Ethics: Basic Concepts for Nursing Practice Bonnie M. Wivell, MS, RN, CNS

30. Definitions Morals: rules of conduct in regard to decisions of right or wrong Values: attitudes, ideals, or beliefs that one holds & uses to guide behavior Ethics: reflects what actions one should take; habits or customs Bioethics: application of ethical theories and principles to moral issues or problems in health care Ethical dilemma caused by advances in technology that allow us to keep patients alive Moral distress: pain/anguish affecting mind, body, relationships in response to a situation in which the person is aware of a moral problem, acknowledges moral responsibility, and makes a moral judgment about the correct action; however, as a result of real or perceived constraints, participates in perceived moral wrongdoing

31. Nursing Code of Ethics Code of ethics is a hallmark of a profession—guidelines of professional self-regulation Provision 2 describes the nurse’s primary commitment to the patient Provision 5 describes the responsibility of nurses to maintain their own integrity A wise nurse who is aware of deep personal values and moral standards will make decisions regarding practice setting so the nurse’s own personal integrity remains intact, while putting patients and their needs first Moral Reflection = critical analysis of one’s morals beliefs and actions

32. Kohlberg’s Levels of Moral Development Kohlberg: 1976-1986; research on men & boys; justice focused 1. Preconventional: perspective is self-centered; decisions based on wants/needs, not right/wrong; children < 9 yo, adolescents, adult criminals; respond to punishment 2.Conventional: moral decisions conform to expectations of family/society; what pleases others; most adolescents & adults function at this level; respond to prospect of personal reward 3. Post-conventional: individual develops own moral values; ignore self-interest and group norms in making moral choices; may sacrifice themselves on behalf of the group; create own morality; minority of adults achieve this level

33. Gilligan’s Levels of Moral Reasoning Gilligan: 1982; research on women Gilligan believed women’s identities based largely on relationships with others & care focused Kolberg’s theory inadequate for women as it was justice focused and studies were on men. Gilligan’s levels of moral development 1. Individual survival 2. Goodness, self-sacrifice 3. Morality of caring & responsible to others and self A moral person responds to need & demonstrates a considerations of care & responsibility in relationships

34. Put an Ethical Theory to Practice

35. Ethical Theories Deontology: duty to do what is right Act: get facts & decide; same judgment in similar situations Rule: principles guide actions; “always keep a promise”; promise kept regardless of the change in circumstances Beneficence: do no harm Autonomy: make own decision Utilitarianism: usefulness of action is utility of what brings about greatest good for greatest number of people Virtue Ethics: Virtues refer to specific character traits of truthfulness, honesty, courage, kindness, respect, fairness & integrity Principalism: uses ethical principles of beneficence, nonmaleficence, autonomy & justice in resolution of ethical conflict or dilemmas

36. Ethical Principles Autonomy: right to determine own actions & freedom to make own decisions Beneficence: “the doing of good” (benefit) Nonmaleficence: duty to do no harm Veracity: “telling the truth” Fidelity: faithfulness; honoring commitment/ promises Justice: fair & equal; equals treated same and unequals treated differently—those with greater or less needs should get different care; allocation of resources a problem in health care

37. I solemnly pledge myself before God and in the presence of this assembly, to pass my life in purity and to practice my profession faithfully (fidelity). I will abstain from whatever is deleterious and mischievous, and will not take or knowingly administer any harmful drug (nonmaleficence). I will do all in my power to maintain and elevate the standard of my profession (beneficence) and will hold in confidence all personal matters committed to my keeping and all family affairs coming to my knowledge in the practice of my calling (confidentiality). With loyalty will I endeavor to aid the physician in his work (fidelity), and devote myself to the welfare of those committed to my care (justice). The Nightingale Pledge

38. Nursing Code of Ethics Code of ethics is a hallmark of a profession—shape professional self-regulation, serving as guidelines to members of the profession, who then meet their responsibility as trustworthy, qualified, and accountable caregivers ANA Code of Ethics with Interpretive Statements is the latest version of the ethical code (1896-2003) COE is backed by ANA’s Scope & Standards of Practice (2004) which guides nursing practice Standard 12 states “the RN integrates ethical provisions in all areas of practice”

39. ICN’s COE International Council of Nurses (ICN) Code of Ethics (1953;2000); nursing’s respect for the life, dignity, & rights of all people in a manner that is unmindful of nationality, race, creed, color, age, sex, political affiliation, or social status

40. Ethical Decision Making Clarify the ethical dilemma Gather additional data Identify options Make a decision Act Evaluate—dilemma resolved or not?

41. Understanding Ethical Dilemmas in Nursing From personal value systems & beliefs Involving peers’ & other’s behaviors Regarding patient rights: right to privacy, informed consent, to die, confidentiality, respectful care, care without discrimination, information concerning medical condition & treatment, right to refuse to participate in research studies; partnership regarding treatment plan Patient self-determination act (1991) gives patients legal right to determine how they wish to be treated in life-or-death situations. Ethical issues related to immigration and migration Dilemmas created by institutional issues Dilemmas created by patient data access issues