Ethics and Legalities in Nursinghttps://www.ncsbn.org/Professional_Boundaries_2007_Web.pdf

Vicki Thornley, MSN, RN, CNEand Alicia Anger MSN,RN

N-401Fall 2010

Objectives

• Definitions as applied to ethical decisions nurses make during care of clients

• ANA Code of ethics• Advance Directives - MPA• Ethical dilemma steps

Foundation

• Ethics – philosophical ideals of right and wrong behavior.

• Ethics is not religion or law• Nurses have a duty to practice ethically and

morally• Tells us how human beings should behave, not

necessarily what they do. Not a religion, not law, but both of these can be the basis of ethical decisions that you make.

• The word duty is a legal term…

Ethical Issues• Moral uncertainty/conflict– When the nurse is unsure which moral principle to apply, or even

what the problem is. Common with new nurses, they’re not sure what they are supposed to be doing

• Moral distress– When the individual knows the right thing to do but

organizational constraints keep them from doing it• Moral outrage– An individual witnesses an immoral act by another but feels

powerless to stop it• Moral/ethical dilemma– Occurs when two or more clear principles apply but they support

inconsistent courses of action• Self-awareness– Not an ethical issue, but is absolutely vital in ethical decision

making

Ethical Frameworks• Utilitarian – most good, least harm

– Most common approach, “First do no harm” is related to this. Attempts to produce the greatest good with the least harm.

• Rights based– best protects the rights and respects the moral rights of those affected– Begins with idea of human dignity and freedom of choice. The pt has the

right to make the decision. • Duty based- duty to do or to refrain from doing something

– Decisions are made because there is duty! • Common good – best for community/society

– Decisions should be made on what is good for the community as a whole, not necessarily for the individual. Where many of our nations laws are base

• Virtue – actions consistent with certain ideal virtues– Decisions should be directed at maintaining virtues (honesty, courage,

compassion, etc.). A person using this approach may ask themselves, “If I carry out these actions, what kind of person will I be?”

Principles Ethical Reasoning

• Autonomy• Beneficence• Nonmaleficence• Confidentiality• Double Effect• Fidelity• Justice

• Paternalism• Respect for Persons• Sanctity of Life• Veracity

Autonomy

• Definition: “autos” = self, “nomos” = rule– Individual rights– Privacy– Freedom of choice– Pt has the right to make decisions for themselves.

May see this come up with consent for treatment issues, informed consent. Pt has right to know procedure, complications, other options, that they can opt to not have the procedure/treatment. Framework is rights based

Beneficence & Nonmaleficence

• Duty to do good– goodness, kindness,

charity

• Includes nonmaleficence

• Centerpiece for caring

• Duty: NOT TO CAUSE harm

• Duty: PREVENT harm• Duty: REMOVE harm• More binding than

beneficence– Because you’re going

beyond just trying to do good to that pt, you’re trying to prevent harm

Confidentiality

• Keep privileged information private• Exceptions– Protecting one person’s privacy harms another or

threatens social good (direct threat to another person)

– Drug abuse in employees, elder and child abuse

• HIPAA

Double Effect• Some actions can be morally justified even though

consequences may be a mixture of good and evil• Must meet 4 criteria:– The action itself is morally good or neutral– The agent intends the good effect and not the evil (the evil may

be foreseen but not intended)– The good is not achieved by the evil– There is no favorable balance of good over evil

Fidelity

• Duty to be faithful to one’s commitments– includes implicit and explicit promises– Make a promise, follow thru

• Implicit – those promises that are implied, not verbally communicated– Like when pt comes into the hospital, they expect to

be cared for• Explicit – those that we verbally communicate– Like if you tell them you’ll be back with pain meds,

you’d better come back

Justice

• Seeks fairness• More specifically,

distributive justice refers to distribution of benefits and burdens

• Distributive Justice Concepts– Equally disbursed

according to• Need• Effort• Societal contribution• Merit• Legal entitlement

Paternalism

• When one individual assumes the right to make decisions for another

• Limits freedom of choice• Think about parents making decisions for children• Ex. Withholding pertinent information from a pt.

Like elderly dx with terminal cancer, and family asks to not tell them that it’s terminal so they will still be motivated to fight

Respect for Persons

• Closely tied to autonomy• Promotes ability of individuals to make

autonomous choices and should be treated accordingly

• Autonomy is preserved thru advanced directives.

Sanctity of Life

• Life is the highest good –All forms of life, including mere biologic

existence, should take precedence over external criteria for judging quality of life– If life is the highest good, is it ethical to keep

a brain dead person alive?

Veracity

• The obligation to tell the truth and not to lie or deceive others

Ethics and Professional Practice

• ANA Code of ethics & ICN Code

• TX BON Rules & Regs• NCSBN Professional

Boundaries• Informed consent• Durable power of attorney

for healthcare guardian

• Euthanasia• Assisted suicide• Death• Disasters

American Nurses Association(ANA) Code of Ethics

• Applies to all nurses in all healthcare settings

• Ethical principles agreed upon by members of the nursing profession

• Sets standards of conduct and behaviors for nurses

• http://www.nursingworld.org/mainmenucategories/ethicsstandards/codeofethicsfornurses

ANA Code of Ethics – Key Points• Applies in course of professional practice:– Primary commitment is to patient (individual, family

or community)– Demonstrates compassion and respect for all

patients regardless of patient status– Promotes the health and welfare of patients– Accountable for individual practice. – Maintains and increases own knowledge base– Works to improve healthcare environment for

providers and patients

ICN Code of Ethics

• International Council of Nurses Code of Ethics• 4 fundamental responsibilities of Nurses– Promote health– Prevent illness– Restore health– Alleviate suffering

– http://www.icn.ch/icncode.pdf

Nurses Rights in Ethical Situations

• Nurse has the right to refuse to participate in giving care to a client if they disagree with care on ethical grounds.– Upheld by ANA– Assure client is not abandoned for care– The Joint Commission (TJC) requires employers to

establish policies and mechanisms to address staff requests not to participate in aspects of care that conflict with cultural values or religious beliefs.

Nursing Practice Regulations• TBON – Texas Board of Nursing– Regulates nursing practice in Texas– Creates Rules and Regulations to administer the

Nurse Practice Act (NPA)– Describes rules of conduct for nurses• Rule 213.27 – Good Professional Character• Rule 217.11 – Standards of Practice• Rule 217.12 – Unprofessional Conduct

– http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=3&ti=22&pt=11

NCSBN Professional Boundaries

Concepts of Professional Boundaries• Boundaries: Space between nurse’s power and

client’s vulnerability

• Crossings: Brief excursions across boundaries that may be inadvertent, thoughtless, or even purposeful if done to meet a specific therapeutic need

https://www.ncsbn.org/Professional_Boundaries_2007_Web.pdf

NCSBN Professional Boundaries

Concepts of Professional Boundaries• Violations: results when there is confusion

between the needs of the nurse and those of the client.

• Sexual misconduct: extreme form of violation that is seductive, sexually demeaning, harassing or interpreted as sexual by the client.

https://www.ncsbn.org/Professional_Boundaries_2007_Web.pdf

Identifying Boundary Crossings• Excessive self-disclosure– When the nurse discusses personal feelings or aspects of

their personal life in front of the pt• Secretive behavior– When the nurse keeps secrets with the client or when the

nurse becomes guarded when someone questions their interactions

• “super nurse”– When the nurse believes only he or she can meet the needs

of the client• Selective communication– When the nurse fails to explain actions or actions of care

Identifying Boundary Crossings

• Singled out client treatment/client attention to the nurse– Nurse spends inappropriate amts of time with the

client, client may give gifts to the nurse• Flirtations– Never, ever, appropriate, or ok, ever, ever…

• You and me against the world behavior– Nurse views client in a protective manner

• Failure to protect the client– Nurse doesn’t’ recognize sexual feelings towards the

client

Nurse’s Challenge

• Be aware• Be cognizant of feelings and behaviors• Be observant of the behavior of other

professionals• Always act in the best interest of the client

https://www.ncsbn.org/Professional_Boundaries_2007_Web.pdf

Informed Consent

• Core underlying value is patient autonomy• Physician / practitioner obtains consent• Nurses role: witness / monitor• Emergency consent is presumed when patient

unable to provide • Informed consent is a process that people go thru,

not just a paper. • Nurses role is to make sure pt understands

everything and that the person that signs is the person who needs to be signing! The nurse can’t go in and explain the procedure again, if you contradict what the doc told the pt, you’re in big trouble! Don’t do it!

Capacity to Form Consent• Decision-making capacity (not competency)

determined by:– Appreciation of right to make the choice– Understanding of risks/benefits of procedure– Understanding of risks/benefits of opting out of

procedure– Ability to communicate decision• Communication may not always be verbal, can be

written or whatever• Needs to have interpreter avl! Can’t just use the

family or whatever• Use layman jargon. Normal words… Don’t say

layman jargon.

Advance Directives • Include

– Directive to Physician and Family or Surrogate• Most common. Allows pt to document wishes for tx or withdrawal, also

commonly known as “Living Will”– Medical Power of Attorney

• Allows the pt to designate another person as their decision maker– Out of Hospital Do-Not-Resuscitate Order

• Allows competent adults to refuse life sustaining procedures when out of the hospital setting. Can include not wanting to be taken to ER, let me sit here and die…

– Declaration of Mental Health Treatment• Allows a court to determine incapacity and allows the pt to refuse electro

convulsive therapy (ECT) and psychoactive drugs• Sometime generically called “Living Will”• Not same as DNR (do not resuscitate)

– These are written during hospitalization after the doc and the pt (or pt surrogate) decide to withdrawal life sustaining treatments.

• Advanced Directives are documents that state in writing the pts wishes for healthcare interventions if they should become incapacitated.

Other Contingencies…• Directives unavailable / never done– Autonomy versus “best interest” of clients– Substituted judgment• Legal standard that presumes the surrogate is capable of

making decisions for that pt

– Dementia clients• Dementia diagnosis doesn’t necessarily mean the pt is

incapable of making their own decisions. Esp in the first few stages of dementia. Pt is very alert and very aware and very much can make that decision for themselves.

Withholding/Withdrawing Care

• Can withhold “inhumane” treatment if it is “virtually futile” in extending life – usually DNR

• Allowing to die vs making die

Euthanasia• Definition – intentional termination of life (at the

request of that person who wishes to die)Active vs. Passive– Generally illegal– May be legal under certain circumstances– Active – involves purposefully causing the persons death

(doc or nurse). Dr. Kevorkian. Usually involved with law problems

– Passive – involves hastening of death by altering some form of support, taking a pt off a vent, generally accepted by medical community

• Terminal sedation– Doctrine of Double Effect (the whole intent of the act, thing)– Do a thing with one intent, but causes something else to

happen – morphine OD– Procedure used in dying pts to relieve suffering. Pts who are

in extreme pain may chose terminal sedation

Assisted Suicide• Patient actively seeks physician/nurse to “help”

them commit suicide• Criminal offense in all states but Oregon,

Washington, and Montana• Usually pt is given prescriptions in amts that are

legal and the pt decides if they want to use it.

Defining Death

• Uniform Determination of Death Act – patient is dead if any one of the following conditions are met:– Cardiopulmonary death – Neurological death• Whole brain death – Flat EEG • Not PVS – (persistent vegetative state)

Ethical Dilemmas

• the action or situation involves actual or potential harm to someone or some thing

• a possibility of a violation of what we generally consider right or good

• is this issue about more than what is legal or what is most efficient?

How to Process an Ethical Dilemma

1. Determine whether or not a dilemma exists2. Gather all relevant information3. Reflect on your values on the issues4. Verbalize problem5. Consider all possible courses of action –

including referral to ethics committee6. Negotiate outcome 7. Evaluate action, not the outcome.

Conclusion

• Know yourself and your values• Protect your patient by intervening if you

identify an ethical question• Know your facility policy for access to the

ethics committee• Know your responsibilities with regard to

informed consent • Respect the patient’s advance directives

Excerpts: ANA Code of Ethics

• The nurse, in all professional relationships, practices with compassion and respect for the inherent dignity, worth, and uniqueness of every individual, unrestricted by considerations of social or economic status, personal attributes, or the nature of health problems.

Excerpts (cont’d)

• The nurse’s primary commitment is to the patient, whether an individual, family, group, or community.

• The nurse promotes, advocates for, and strives to protect the health, safety, and rights of the patient.

Excerpts (cont’d)

• The nurse is responsible and accountable for individual nursing practice; and determines the appropriate delegation of tasks consistent with the nurses obligation to provide optimum patient care.

Excerpts (cont’d)

• The nurse owes the same duties to self as to others, including the responsibility to preserve integrity and safety, to maintain competence, and to continue personal and professional growth.

Excerpts (cont’d)

• The nurse participates in establishing, maintaining, and improving health care environments and conditions of employment conductive to the provision of quality health care and consistent with the values of the profession through individual and collective action.

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Nursing Legalities

Alicia Anger, MSN, RNN-401

Fall 2010

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Learning Outcomes

• Describe sources of law that affect nursing practice

• Professional negligence• Avoiding Malpractice claims• Causes for suspension/revocation of license• Legal responsibilities of Nurse Leaders

Distinction between Law and Ethics

Concepts Law Ethics

Source External Internal

Concerns Conduct and Actions

Motive, attitude, culture

Interests Society Individual

Enforcements Courts, BON Ethics Committee and professional organizations

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What is law?

• Law

– Rules of conduct

– Authored & enforced by formal authorities

– Hold people Accountable for compliance

• Purpose of Nursing Law

– Protect – patient and nurse

– Scope of practice (define it)

Sources of Law

• Constitution: establishes a basis for a governing system (highest law that gives authority to the other branches)

• Statutes: laws that govern• Administrative agencies: given authority to

create rules and regulations to enforce statutes (like texas board of nursing)

• Court decisions: interpret statutes and determine consequences

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Types of Court Cases & Laws

• Criminal law: crimes committed against an individual or

society, innocent until proven guilty beyond a reasonable doubt.

Consequences range from fine to jail to death penalty

• Civil law: one individual sues another for money b/c of a

perceived loss. Guilty verdict is based on the belief that the

accused is more likely than not to have caused the injuries.

Consequence is usually $$

• Administrative law: individual is sued by a state/federal

agency responsible for enforcing statutes. Based on a clear and

convincing standard.

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Professional Negligence

• Negligence: the omission to do something that a reasonable and

prudent person in a reasonable situation would or would not do

• Prudent: the average judgment, foresight, intelligence and skill

expected of a person of similar training or experience

• Malpractice: failure of a person with professional training to act in a

reasonable and prudent manner

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Professional Negligence

Five components necessary for professional

negligence to occur:

1. Standard of care

2. Failure to meet standard

3. Foreseeability of harm

4. Correlation b/t care and harm must be proven

5. Actual patient injury must occur

Professional Negligence

Reducing the Risk:• Know the law• Document everything• Refrain from negative comments• Question authority• Stay educated

http://www.nurseweek.com/features/00-05/malpract.html

Professional Negligence

Reducing the Risk cont.:• Manage risks• Don’t hurry through discharge• Be discreet• Use restraints wisely• Be kind

http://www.nurseweek.com/features/00-05/malpract.html

Liability

• Liable: to be legally responsible by law• Personal liability: every person is liable for

his/her own conduct• Joint liability: nurse, physician, and

employing organization are liable• Respondeat superior liability: “the master is

responsible for the acts of his servants”

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Claims Against Nurses

• Inadequate charting.

• Inadequate communication w/ HCP or

supervisors about changes in pt condition

• Leaving potentially harmful items within patient

reach

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Claims Against Nurses

• Unattended pt falls

• Inaccurate counting of operative instruments & sponges

• Misidentifying patients for medications, surgeries & tests

Incident Reports• Incident reports can’t be used in court, unless they (lawyers and

what not) find out that it exists. They are intended for internal shit only, within the hospital, monitoring trends, prevention of future occurrences, etc.

• Don’t put them in the chart! You can document the fall, what you did to make it better, but not that you filled out the actual incident report form.

• Don’t tell the pt or family that you’re filling one out! You’re not keeping them from any information about the incident, you’re just not telling them about the form…

• Don’t document on pt’s chart that you filled one out! • Notify nurse management teams and what not when you fill it

out. • Remember, there is no law about having to fill out an incident

report. It’s just the hospitals policy to keep tabs on all the shit that goes wrong inside it’s walls

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Incident Reports

• Unusual / unexpected incidents Do– Document incident information, treatment & follow up

on chart– Notify Nsg Management & Risk Management DO NOT– Leave copy on chart– Discuss with pt / family– Document form completion in chart

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Intentional Torts• Assault & Battery– Assault is the behavior that makes a person fearful of harm– Battery is an intentional physical contact with a person that

causes injury• False Imprisonment– Any unlawful confinement within fixed boundaries, can be

physical, emotional, or chemical• Defamation of character (slander)– Communicating to a 3rd party information that can hurt

character, self esteem, blah blah blah. Being truthful reduces risks of being charged with this

• Invasion of privacy

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Types of Consent• Informed consent

• Implied consent– Pt unable to consent – Treatment is in patients best interest

• Express consent– Witness pt signature – Assure pt received information

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Informed Consent

• Language pt understands

• Patient competency

• Requires full disclosure (procedure process,

risks and benefits)

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Medical Records

Although the patient owns the information in

the medical record, the actual record belongs to

the facility that originally made record & is storing

it

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Causes of License Suspension

• Professional negligence

• Practicing nursing w/o a license

• Obtain license by fraud

• Felony convictions

Causes of License Suspension

• Not reporting substandard medical or nursing care• Providing patient care under the influence of

drugs/alcohol• Giving narcotics w/o order • Falsely portraying self to public or any HCP as a

nurse

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Legal Responsibilities of a Nurse Leader

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Legal Responsibilities of the Nurse Leader

• Reporting dangerous understaffing– Texas passed law saying you have to have rules and

policies set up and in place in case staffing issues arise

• Ensuring staff credentials and qualifications • Quality Control of nursing practice• Equipment operation by staff• Reporting substandard care• Responsibility to be fair and nondiscriminatory

Malpractice for Nurse Leader

• Assignments

– Pt assignments

• Delegation

• Supervision

• Orientation & Education

• Evaluation

• Staffing67

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The Patient Self-Determination Act

Requires health care organizations that receive

federal funding to provide education for staff and

patients on issues concerning treatment and end-of-life

issues. (They have to ask about Advanced Directives

and what not on admission and inform them about it)

Whistleblower Act

• To prevent employers from taking retaliatory action against nurses such as suspension, demotion, harassment or discharge for reporting improper patient care or business practices

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Good Samaritan Act

Generally, a nurse is not liable for injury that occurs as a result of emergency treatment, provided that:

• Care is provided at the scene of emergency

• The care is not grossly negligent

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Health Insurance Portability and Accountability Act

• Protects the privacy of health information

• Administrative Simplification plan– All related to electronic medical records, simplifying

exchange of info and what not, by 2014 all hospitals have to have this

• Privacy Rules

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Diverse Workforce• Title VII (Civil Rights Act-1964): Protects against

discrimination based on race, color, creed, national

origin, religion or sex

• Age Discrimination in Employment: no

discrimination over age 40

• American with Disabilities Act: no

discrimination against physical or mental impairment

regarding hiring

Diverse Workforce

• Equal Pay Act: no discrimination against women

• Occupational Safety & Health Act: safe and

healthy work environment

• Family & Medical Leave Act: provides job

security for taking leave of absence

Joint Commission

Independent not for profit organization that accredits and certifies healthcare organizations

• Purpose: continuously improve health care for the public, in collaboration with other stakeholders, by evaluating health care organizations and inspiring them to excel in providing safe and effective care of the highest quality and value

http://www.jointcommission.org/AboutUs/

Joint Commission

National Patient Safety Goals• Improve accuracy of patient identification• Improve the effectiveness of communication

among caregivers• Improve the safety of using medications• Reduce the risk of healthcare associated

infections

http://www.jointcommission.org/AboutUs/

Joint Commission

National Patient Safety Goals cont.:• Accurately and completely reconcile medications

across the continuum of care• Reduce the risk of patient harm resulting from falls• Prevent healthcare associated pressure ulcers• The organization identifies safety risks inherent in

its patient population• Universal protocolhttp://www.jointcommission.org/AboutUs/

Centers for Medicare & Medicaid

The Centers for Medicare & Medicaid Services (CMS) is a branch of the U.S. Department of Health and Human Services. CMS is the federal agency that administers the Medicare program and monitors the Medicaid programs offered by each state.

http://www.cms.gov/

Centers for Medicare & Medicaid

• Works closely with TJC to maintain patient safety

• Reimburses according to meeting standards of care

• Healthcare-associated infections• Hospital-acquired conditions

http://www.cms.gov/

References

Potter, P. A., & Perry, A.G. (2009) Fundamentals of Nursing (7th ed.). Canada: Mosby.

Smeltzer, S. C., & Bare, B. G. (2008). Brunner & Suddarth's textbook of medical-surgical nursing (11th ed.). Philadelphia, PA: Lippincott

Markkula Center for Applied Bioethics. http://www.scu.edu/ethicsTexas Engineering Extension Service (TEEX), Center for Disease Control

and Prevention (CDC), The Texas A&M University System (TAMUS), & National Emergency Response and Rescue Training Center (NERRTC). (2003). Integrated Health and Medical WMD Training Program. (Original work published 2001, Texas Engineering Extension Service (TEEX), College Station, TX.

Marquis, B. & Huston,C. (2009) Leadership roles and management functions in nursing (6th ed). Philadelphia, PA: LIppincott