Chapter 4: Legal Chapter 4: Legal Aspects of NursingAspects of Nursing

Bonnie M. Wivell, MS, RN, CNSBonnie M. Wivell, MS, RN, CNS

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)

American Legal SystemAmerican Legal System Laws are rules of conduct that are authored Laws are rules of conduct that are authored

and enforced and hold people accountable for and enforced and hold people accountable for compliancecompliance

Common Law: decisional, judge-madeCommon Law: decisional, judge-made Statutory Law: legislative processStatutory Law: legislative process Administrative Law: legislative branch Administrative Law: legislative branch

delegates authority to government agencies delegates authority to government agencies to create lawsto create laws Administrative cases result when a person violates Administrative cases result when a person violates

the rules and regs established by this law (i.e. RN the rules and regs established by this law (i.e. RN or MD practices without a valid license)or MD practices without a valid license)

Civil Law: enforces rights of individualsCivil Law: enforces rights of individuals Criminal Law: protects societyCriminal Law: protects society

Nursing as a Regulated PracticeNursing as a Regulated Practice Licensing is to protect the public health, Licensing is to protect the public health,

safety, and welfaresafety, and welfare All states have nurse practice acts which are All states have nurse practice acts which are

statues that define and control nursingstatues that define and control nursing Defines practice of a professional nursingDefines practice of a professional nursing Sets minimum educational qualifications and other Sets minimum educational qualifications and other

requirements for licensurerequirements for licensure Determines legal titles & abbreviations nurses may Determines legal titles & abbreviations nurses may

useuse Provides for disciplinary action of licensees for Provides for disciplinary action of licensees for

certain causescertain causes State board of nursing State board of nursing

Responsible for administering and enforcing nurse Responsible for administering and enforcing nurse practice act in its statepractice act in its state

ANA Urges The Use of the ANA Urges The Use of the Following ContentFollowing Content

1.1. Differentiation between advanced and Differentiation between advanced and generalist nursing practicegeneralist nursing practice

2.2. Authority to regulate advanced nursing Authority to regulate advanced nursing practice including prescription writingpractice including prescription writing

3.3. Authority to oversee unlicensed assistive Authority to oversee unlicensed assistive personnelpersonnel

4.4. Clarification of nurse’s responsibility for Clarification of nurse’s responsibility for delegation to & supervision of othersdelegation to & supervision of others

5.5. Support of mandatory licensure for Support of mandatory licensure for nurses while retaining flexibility for nurses while retaining flexibility for changing nature of nursing practicechanging nature of nursing practice

Executive Authority of SBNExecutive Authority of SBN Governor (or state executive) delegates Governor (or state executive) delegates

responsibility for administering the nurse responsibility for administering the nurse practice act to an executive agency – the practice act to an executive agency – the State Board of NursingState Board of Nursing

State Board of Nursing consists ofState Board of Nursing consists of RNs, LPNs, & Consumers appointed by RNs, LPNs, & Consumers appointed by

governorgovernor FunctionsFunctions

Executive: administer the nurse practice actExecutive: administer the nurse practice act Legislative: adopt rules to implement the actLegislative: adopt rules to implement the act Judicial: authority to deny, suspend, or revoke Judicial: authority to deny, suspend, or revoke

a license or otherwise discipline a licensee or a license or otherwise discipline a licensee or deny application for licensuredeny application for licensure

LicensingLicensing All states have a mandatory licensure law for the All states have a mandatory licensure law for the

practice of nursing to safeguard the publicpractice of nursing to safeguard the public Has the power to discipline for performing Has the power to discipline for performing

professional functions in dangerous mannerprofessional functions in dangerous manner Practicing while impaired #1 reason for license Practicing while impaired #1 reason for license

revocation, suspensionrevocation, suspension Peer assistance programs for substance abuse; Peer assistance programs for substance abuse;

voluntary alternative to suspension or revocation voluntary alternative to suspension or revocation of licenseof license

Minimum criteria for nursing education programsMinimum criteria for nursing education programs Schools of nursing must be state approved to operateSchools of nursing must be state approved to operate National approval demonstrates higher than minimal National approval demonstrates higher than minimal

standardsstandards

Licensure ExaminationsLicensure Examinations National Council Licensure Examination: National Council Licensure Examination:

NCLEX-RN (Since 1978)NCLEX-RN (Since 1978) Tests critical thinking and nursing competence Tests critical thinking and nursing competence

in all phases of the nursing processin all phases of the nursing process NCSBN develops tests, updates, validates NCSBN develops tests, updates, validates

and sets minimum scoresand sets minimum scores Since 1994 computerized adaptive testingSince 1994 computerized adaptive testing Test plan: Test plan: https://www.ncsbn.org/1287.htm Licensure by endorsement (since 1944)Licensure by endorsement (since 1944)

RNs can practice in other states without having RNs can practice in other states without having to retake another licensure examto retake another licensure exam

Must submit proof of licensure & pay feeMust submit proof of licensure & pay fee

Trends in LicensureTrends in Licensure Society mobile: traveling nurse, telehealthSociety mobile: traveling nurse, telehealth NCSBN developed NCSBN developed mutual recognitionmutual recognition modelmodel——

license in one state of residency yet practice in license in one state of residency yet practice in other compact member state without additional other compact member state without additional licenseslicenses

Nurse Licensure Compact (NLC) started 2000 Nurse Licensure Compact (NLC) started 2000 with Utah, Texas Wisconsin & by mid 2008, 23 with Utah, Texas Wisconsin & by mid 2008, 23 states had joined states had joined

https://www.ncsbn.org/nlc.htm Global perspective of licensure on NCSBN agendaGlobal perspective of licensure on NCSBN agenda

—recruitment from other nations controversial.—recruitment from other nations controversial. NCSBN began administering NCLEX NCSBN began administering NCLEX

internationally to competent nurses applying for internationally to competent nurses applying for U.S. licensure in January 2005.U.S. licensure in January 2005.

Legal Risks in Nursing PracticeLegal Risks in Nursing Practice

MalpracticeMalpractice: greatest legal concern: greatest legal concern Negligence—failureNegligence—failure to actto act as a as a

reasonably prudent person would have reasonably prudent person would have acted in similar circumstancesacted in similar circumstances

Commission = doing something that should not Commission = doing something that should not have been donehave been done

Omission = failing to do things that should Omission = failing to do things that should have been donehave been done

Central question in any charge of Central question in any charge of malpracticemalpractice ““Was the prevailing standard of care met?”Was the prevailing standard of care met?”

Legal Risks in Nursing PracticeLegal Risks in Nursing Practice

Malpractice claim, evidence presented to Malpractice claim, evidence presented to jury to determine if elements of liability are jury to determine if elements of liability are present. present.

Consider:Consider: Prevailing standards of care: what another Prevailing standards of care: what another

prudent nurse would have doneprudent nurse would have done Expert witness testimonyExpert witness testimony SOC that prevailed at the timeSOC that prevailed at the time National standards of nursing practiceNational standards of nursing practice Patient recordPatient record Direct testimony of patient, nurse, and othersDirect testimony of patient, nurse, and others

Prerequisite of a Malpractice ActionPrerequisite of a Malpractice Action

Nurse (defendant) has specialized skills & knowledge, & Nurse (defendant) has specialized skills & knowledge, & through practice causes the patient (plaintiff) injurythrough practice causes the patient (plaintiff) injury

Patient proves nurse is liable with all following elements Patient proves nurse is liable with all following elements Nurse has assumed duty of care (responsibility for pt’s care)Nurse has assumed duty of care (responsibility for pt’s care) Nurse breached duty of care by failing to meet SOCNurse breached duty of care by failing to meet SOC Failure of nurse to meet SOC was proximate cause of the injuryFailure of nurse to meet SOC was proximate cause of the injury Injury is provedInjury is proved

Monetary damages are awarded when plaintiff prevailsMonetary damages are awarded when plaintiff prevails In past, MD or hospital paid damagesIn past, MD or hospital paid damages Nurse liability has risen due to increased expertise, Nurse liability has risen due to increased expertise,

autonomy and authorityautonomy and authority

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%

Nurse LiabilityNurse Liability

Six major categoriesSix major categories Failure to follow standard of careFailure to follow standard of care Failure to use equipment in responsible mannerFailure to use equipment in responsible manner Failure to communicateFailure to communicate Failure to documentFailure to document Failure to assess and monitorFailure to assess and monitor Failure to act as a patient advocateFailure to act as a patient advocate

Note: student nurse errors & omissions may Note: student nurse errors & omissions may also be considered by courts as malpracticealso be considered by courts as malpractice

DelegationDelegation The nurse is ultimately responsible for acts The nurse is ultimately responsible for acts

he/she delegateshe/she delegates ANA’s Code of Ethics for Nurses statesANA’s Code of Ethics for Nurses states

““The nurse is responsible and accountable for The nurse is responsible and accountable for individual nursing practice and determines the individual nursing practice and determines the appropriate delegation of tasks consistent with the appropriate delegation of tasks consistent with the nurse’s obligation to provide optimum patient care.”nurse’s obligation to provide optimum patient care.”

RNs delegate care (tasks), but not nursing RNs delegate care (tasks), but not nursing process; cannot delegate assess. & eval.process; cannot delegate assess. & eval.

Most debated area: medication administration to Most debated area: medication administration to unlicensed assistive personnel (22 states allow)unlicensed assistive personnel (22 states allow)

Note: State nurse practice acts do not give Note: State nurse practice acts do not give delegation authority to LPNs delegation authority to LPNs

5 Rights of Delegation5 Rights of Delegation

Right taskRight task Right circumstancesRight circumstances Right personRight person Right direction/communicationRight direction/communication Right supervision/evaluationRight supervision/evaluation

Assault & BatteryAssault & Battery

Assault:Assault: threat or attempt to make bodily threat or attempt to make bodily contact without another person’s consent; contact without another person’s consent; causes fear that battery about to occur causes fear that battery about to occur Example: Threat to give patient vitamin injection if Example: Threat to give patient vitamin injection if

does not eatdoes not eat Battery:Battery: assault carried out, impermissible assault carried out, impermissible

touching; actual harm may or may not occurtouching; actual harm may or may not occur Example: Give pt. vitamin injection against their Example: Give pt. vitamin injection against their

willwill Patients have the right to refuse Patients have the right to refuse

treatment, meds, etc.treatment, meds, etc.

Informed ConsentInformed Consent

1.1. Must be given Must be given voluntarilyvoluntarily—freedom —freedom to accept or rejectto accept or reject

2.2. Must be given by a Must be given by a competent competent personperson with capacity to understand— with capacity to understand—minors, under influence of minors, under influence of drugs/alcohol, or mental deficits drugs/alcohol, or mental deficits consent by parent, spouse, court-consent by parent, spouse, court-ordered guardian/proxyordered guardian/proxy

3. Must be given 3. Must be given enough informationenough information to make a decisionto make a decision

ConfidentialityConfidentiality

Code of Ethics for nursesCode of Ethics for nurses ““the nurse has a duty to maintain the nurse has a duty to maintain

confidentiality of all patient information..”confidentiality of all patient information..” Exceptions:Exceptions:

Discussing with others involved in patient care, Discussing with others involved in patient care, quality assurance, legal mandates, third party quality assurance, legal mandates, third party payerspayers

Privileged communication: lawyers, clergyPrivileged communication: lawyers, clergy Duty to report: child abuse, gunshot wounds, Duty to report: child abuse, gunshot wounds,

threats to another, vulnerable adult abuse, threats to another, vulnerable adult abuse, certain communicable diseasescertain communicable diseases

HIPPAHIPPA

Requires all health care providers to Requires all health care providers to ensure patient privacy and ensure patient privacy and confidentialityconfidentiality

Patient protectionsPatient protections Patient can see & obtain medical recordsPatient can see & obtain medical records Providers must give written notice of pt. Providers must give written notice of pt.

rightsrights Limitations placed on time records can be Limitations placed on time records can be

retrieved, what information shared, who can retrieved, what information shared, who can be present when it is sharedbe present when it is shared

Evolving Legal Issues & the NurseEvolving Legal Issues & the Nurse

Role changes in health care--advanced Role changes in health care--advanced practice nursing; based on state’s nurse practice nursing; based on state’s nurse practice actpractice act

Prescription authority-prescription writingPrescription authority-prescription writing Supervision of unlicensed assistive Supervision of unlicensed assistive

personnel—certified nursing assistantspersonnel—certified nursing assistants Payment mechanisms for nurses Payment mechanisms for nurses

practicing in non-traditional roles and in practicing in non-traditional roles and in advanced practiceadvanced practice

Patient Self-Determination ActPatient Self-Determination Act

Applies to acute care & LTC that receive Applies to acute care & LTC that receive Medicare and Medicaid & encourages Medicare and Medicaid & encourages patients to consider which life-prolonging patients to consider which life-prolonging options they desireoptions they desire

Acute care and LTC facilities must provideAcute care and LTC facilities must provide Written information about rightsWritten information about rights Ensure compliance with advanced directivesEnsure compliance with advanced directives Educate staff & community on advanced Educate staff & community on advanced

directivesdirectives Document in the medical record advanced Document in the medical record advanced

directivesdirectives

Prevent Legal ProblemsPrevent Legal Problems Practice in a Practice in a safe settingsafe setting

Employs appropriate number and skill mix of personnelEmploys appropriate number and skill mix of personnel Has P&P that promotes quality improvement (Risk Has P&P that promotes quality improvement (Risk

management and JC)management and JC) Keeps equipment in good working orderKeeps equipment in good working order Provides orientation and continuing educationProvides orientation and continuing education

CommunicateCommunicate with providers, patient, family with providers, patient, family Document Document accurately, in timely manner, and conciselyaccurately, in timely manner, and concisely If not documented, not doneIf not documented, not done Rapport with patient & family can be protection from Rapport with patient & family can be protection from

lawsuitslawsuits Meet the standard of careMeet the standard of care in facility, trends in in facility, trends in

area of practice, area of practice, ANA Nursing: Scope & Standards ANA Nursing: Scope & Standards of Practice; of Practice; Stay within own limits of education, Stay within own limits of education, expertise & state’s Nurse Practice Actexpertise & state’s Nurse Practice Act

Liability InsuranceLiability Insurance

Carry own nurses’ liability insuranceCarry own nurses’ liability insurance• Nurses Service Organization (NSO) Nurses Service Organization (NSO)

www.nso.com/nursing5 or call 1-800-2137-1500

National Practitioner Data Bank – 1986National Practitioner Data Bank – 1986• Encourages identification and discipline of Encourages identification and discipline of

practitioners who engage in unprofessional practitioners who engage in unprofessional behaviorbehavior

• Reported problem areas for nursesReported problem areas for nurses Monitoring patientsMonitoring patients Implementing treatmentsImplementing treatments Medication problemsMedication problems

Positive Interpersonal Positive Interpersonal Relationships ImportantRelationships Important

Prevent disgruntled patients; key is Prevent disgruntled patients; key is positive relationship with positive relationship with patient/familypatient/family

Provide personalized care; include in Provide personalized care; include in planning; show compassion & caring planning; show compassion & caring (RBC)(RBC)

Avoid criticizing or blaming health care Avoid criticizing or blaming health care providersproviders

Maintain a concerned and non-Maintain a concerned and non-defensive mannerdefensive manner

7 Legal Tips 7 Legal Tips

Administer meds properlyAdminister meds properly Monitor for & report deteriorationMonitor for & report deterioration Communicate effectivelyCommunicate effectively Delegate responsiblyDelegate responsibly Document accurately & timelyDocument accurately & timely Know & follow facility policies & proceduresKnow & follow facility policies & procedures Use equipment properlyUse equipment properly

Austin,S.(2008). Seven legal tips for safe nursing practice. Austin,S.(2008). Seven legal tips for safe nursing practice. Nursing2008.Nursing2008. March March 2008, p 34-40.2008, p 34-40.

Chapter 5: Ethics: Basic Concepts for Nursing Practice

Bonnie M. Wivell, MS, RN, CNS

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

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

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

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

Put an Ethical Theory to Practice

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

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

The Nightingale PledgeI 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).

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”

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

Ethical Decision Making

Clarify the ethical dilemma Gather additional data Identify options Make a decision Act Evaluate—dilemma resolved or not?

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