Chapter 4 Legal Aspects of Nursing

Delegation

"The process for a nurse to direct another person to perform nursing tasks and activities"

Law

"the sum total of rules and regulations by which society is governed. As such law is created by people and exists to regulate all persons."

Introduction

-it is important for nurses to know the basics of legal concepts, because nurses are accountable for their professional judgements and actions

Administrative Law

When a state legislature passes a statute, an administrative agency is given the authority to create rules and regulations to enforce the statutory laws. For example, state board of nursing write rules and regulations to implement and enforce a nurse practice act, which was created through statutory laws.

The standards of care by which a nurse acts or fails to act are define by what?

Nurse Practice Acts and by the rule of reasonable and prudent action-what a reasonable and prudent professional with similar preparation and experience would do in similar circumstances.

Access

Nurses administer medications for all purposes and are readily available.

Lack of Education

On the addictive process and its signs and symptoms.

Accreditation/Approval of Basic Nursing education programs

One of the functions of a state board of nursing is to endure that schools preparing nurses maintain minimum standards of education. Depending on the state, a state board of nursing must either approve of accredit a nursing program. This is a legal requirement.

Who must give consent of minors before they obtain treatment?

Parent or Guardian

The Judicial Process

Primarily functions to settle disputes peacefully and in accordance with the law.

Regulation of Nursing Practice

Protection of the public is the legal purpose for defining the scope of nursing practice, licensing requirements, and standard of care. Nurses who know and follow their nurse practice acts and standards of care provide safe, competent nursing care.

Contractual Obligations

Refer to the nurse's duty of care, that is, duty to render care, established by the presence of an expressed or implied contract.

The impaired nurse

Refers to a nurse's inability to perform essential job functions because of chemical dependency on drugs or alcohol or mental illness.

Who specifies the rights for those with mental illnesses?

State mental health acts under the law as well as the rights of the staff caring for such clients.

Mandated Reporters

That the nurse is required by law, to report suspected abuse, neglect, or exploitation. ~This is designed to detect cases of abuse and neglect at an early stage, protect children, and facilitate the provision of services to children and families.

Interstate Compact

The Nurse Licensure Compact (NLC) (an agreement between two or more states) is the mechanism used to create mutual recognition among states.

Litigation

The action of a lawsuit

Constitutional Law

The constitution of the U.S. is the supreme law of the country. It establishes the general organization of the federal government, grants certain powers to the government, and places limits on what federal and state governments may do. For example, the U.S. Constitution ensures each U.S. citizen the right to due process of law.

Who must give consent in a life threatening emergency situation when consent cannot be obtained by a adult relative?

The law generally agrees that consent is implied to provide necessary care for the client's emergency

What is the nurse not responsible for and only supposed to witness when asked to sign a consent form?

The nurse is not responsible for explaining the procedure but for witnessing the client's signature on the form. ***

What does the nurse do when the Patient has questions or if the nurse has doubts about the clients understanding?

The nurse should notify the Primary care provider (The nurse is not responsible for explaining the medical and surgical procedure)

When a Nurse is asked to carry out an activity that the nurse believes will be injurious to the client:

The nurse's responsibility is to refuse to carry out the order and report this to the nurse's supervisor.

Responsibility

The obligation associated with a right.

What remains with the nurse when delegating a task to a UAP?

The responsibility for action or inaction on the part of the nurse or UAP remained with the nurse.

What is the nurses key part in helping individuals with disabilities?

To comprehend the opportunities provided by the law

What is the employers responsibility to provide with someone with a disability?

To provide a reasonable accommodations that would allow the person with a disability to perform the job satisfactorily. The employer can claim undue hardship if the accommodation is extremely expensive or difficult to implement.

Nurses and student nurses with chemical dependencies receive what?

Treatment and Support, not discipline and derision (look down on)

Impaired nurses who enter a diversion program (aka peer assistance programs) do not have their nursing license revoked if they follow what?

Treatment requirements

Competent unlicensed Assistive personal (UAP) can be of what to the nurse and allows the nurse to do what?

UAP can be of assistance to the nurse, which allows the nurse to perform those functions appropriate to the nurse's scope of practice.

Contractual Relationships

Vary among practice settings

Right

A privilege or fundamental power to which an individual is entitled unless it is revoked by law or given up voluntarily.

A law suit has strict procedural rules that include 5 steps:

1. A document, called a complaint, is filed by a person referred to as the plaintiff, who claims that his or her legal rights have been infringed on by one or more other persons or entities, referred to as defendants. 2. A written response, called an answer, is made by the defendants. 3. Both parties engage in pretrial activities, referred to as discovery in an effort to obtain all the facts of the situation. 4. In the trial of the case, all relevant facts are presented to a judge or to a jury. 5. The judge renders a decision, or the jury renders a verdict. If the outcome is not acceptable to one of the parties, an appeal can be made for another trial.

The top 4 risk factors that make nurses susceptible to substance use disorders in the workplace are:

1. Access 2. Stress 3. Lack of Education 4. Attitudes

Kinds of Legal Actions

1. Civil Actions 2. Criminal Actions

Sources of Law

1. Constitutional Law 2. Legislation (Statutory Law) 3. Administrative Law 4. Common Law

Violent behavior can include:

1. Domestic Violence 2. Child Abuse 3. Abuse of older adults 4. Sexual Abuse

2 types of Consent

1. Express Consent 2. Implied Consent

Functions of the law in nursing

1. It provides a framework for establishing which nursing actions in the care of clients are legal. 2. It differentiates the nurse's responsibilities from those of other health professionals. 3. It helps establish the boundaries of independent nursing action 4. It assists in maintaining a standard of nursing practice by making nurses accountable under the law

Exceptions: Three groups of people cannot provide consent:

1. Minors 2. Individuals who are unconscious or injured 3. People with mental illnesses who have been judge by professionals to be incompetent.

3 Legal Roles of Nurses

1. Provider of Service 2. Employee or Contractor for Service 3. Citizen

Types of Laws

1. Public Law -Criminal law 2. Private law or Civic Law -Contract law and Tort law

Legislation (Statutory Law)

Laws enacted by any legislative body. When federal and state laws conflict, federal law supersedes. Likewise, state laws supersede local laws. The regulation of nursing is a function of state law. State legislature pass statutes that define and regulate nursing, that is, nurse practice acts. These acts, however, must be consistent with constitutional and federal provisions.

Common Law

Laws involving court decisions. In addition to interpreting and applying constitutional or statutory law, courts all are asked to resolve disputes between two parties.

Litigator

Lawyers who participate in lawsuits

The nurses signature confirms 3 things when signing a consent form:

1. The client gave consent voluntarily 2. The signature is authentic 3. The client appears competent to give consent

***Informed consent has 3 major elements

1. The consent must be given voluntarily 2. The consent must be given by a client or individual with the capacity and competence to understand. 3. The client or individual must be given enough information to be the ultimate decision maker. (the client must not feel coerced when given informed consent voluntarily)

Information required for the client to make an informed decision:

1. The diagnosis or condition that requires treatment 2. The purposes of the treatment 3. What the client can expect to feel or experience. 4. The intended benefits of the treatment 5. Possible risks or negative outcomes of the treatment 6. Advantages and Disadvantages of possible alternatives to the treatment (including no treatment) 7. Cultural perspective also needs to be considered when clients are asked to make decisions about a procedure or treatment.

Knowledge of Laws that regulate and affect nursing practice is needed for two reasons:

1. To ensure that the nurse's decisions and actions are consistent with current legal principles 2. To protect the nurse from liability

Following circumstances in which sexual harassment occurs:

1. When submission to such conduct is considered, either explicitly or implicitly, a condition of an individual's employment. 2. When submission to or rejection of such conduct is used as the basis for employment decisions affecting the individual. 3. When such conduct interferes with an individual's work performance or creates an "intimidating, hostile, or offensive working environment."

What must nurses know for delegation?

Not only their scope of practice, but the scope of practice of the UAP.

Mutual Recognition Model

A new regulatory model, allows for multistate licensure. With mutual recognition, a nurse who is not under any disciplinary action can practice in person or electronically across state lines under one license.

Nurses as Witnesses

A nurse may be called to testify in a legal action. It is advisable that any nurse who is asked to testify in such a situation seek the advice of an attorney before providing testimony.

What sex can the victim of the harasser be?

Either Male or Female

Implied Consent

Exists when the individual's nonverbal behavior indicates agreement

Who must give consent for those who are unconscious or injured who cannot give consent?

From the closest adult relative if existing statutes permit.

Expert Witness

Has special training, experience, or skill in a relevant area and is allowed by the court to offer an opinion on some issue within his or her area of expertise.

Provider of Service

Implicit in this Role of the nurse to provide safe and competent care are several legal concepts: 1. Liability 2. Standards of Care 3. Contractual obligations

Liability

Is the quality or state of being legally responsible for one's obligations and actions and for making financial restitution for wrongful acts.

CLINICAL ALERT

It is important for nurses to keep their legislators informed about nursing because it is the legislature that passes laws that affect nursing practice.

What is the nurses authority to delegate based on?

Laws and regulations, so the nurse must be familiar with their nurse practice act (NPA)

What do nurses need to be with clients who have substance abuse problems?

Advocate

Contract

An agreement between two or more competent persons, on sufficient consideration (remuneration) to do or not to do some lawful act.

Informed Consent

An agreement by a client to accept a course of treatment or a procedure after being provided complete information, including the benefits and risks of treatment, alternatives to treatment, and prognosis if not treated by a health care provider.

Strike

An organized work stoppage by a group of employees to express a grievance, enforce a demand for changes in conditions of employment, or solve a dispute with management.

Stress

Can be caused by increased workloads, decreased staffing, fatigue and isolation, substance abuse may be a way of coping with stress.

Misuse of Controlled substances leads to:

Criminal Penalties

Criminal Actions

Deals with disputes between an individual and society as a whole. For example, if a man shoots a person, society bring him to trial.

Civil Actions

Deals with relationships among individual in society. For example, a man may file a suit against a person who he believes cheated him.

Burden of Proof

During a trial, a plaintiff must offer evidence of the defendant's wrongdoing, so to prove an assertion of wrongdoing.

Advance Health Care Directives

~Include a variety of legal and lay documents that allow persons to specify aspects of care they wish to receive should they become unable to make or communicate their preferences.

Employee or Contractor for Service

~A nurse who is employed by an agency works as a representative of the agency, and the nurse's contract with clients is an implied one. ~ However, a nurse who is employed directly by a client, for example, a private nurse, may have a written contract with that client in which the nurse agrees to provide professional services for a certain fee. ~Personal inconveniences and personal problems, such as the nurses's care failure, are not legitimate reasons for failing to fulfill a contract.

What happens when Collective Bargaining Breaks down?

~An agreement cannot be reached, the employers usually call a strike.

Criminal law (important segment of Public law)

deals with the actions against the safety and welfare of the public

Tort Law

defines and enforces duties and rights among private individuals that are not based on contractual agreements. Examples of tort laws applicable to nurses are professional negligence, invasion of privacy, and assault and battery

Abortions

~Conscience clauses, upheld by the supreme court designed to protect nurses and hospitals -These clauses give hospitals the right to deny admission to abortion clients and give health care personnel, including nurses, the right to refuse to participate in abortions.

Nurse Practice Acts

~Each state has a nurse practice act, which protects the public by legally defining and describing the scope of nursing practice. ~State nursing practice acts also legally control nursing practice through licensing requirements. ~For advanced nursing practice, many states require a different license or have an additional clause that pertains to actions that may be performed only by nurses with advanced education. ~It is the nurses responsibility to know the nurse practice acts of the state in which he or she practices nursing.

Contract Law

involves the enforcement of agreements among private individuals or the payment of compensation for failure to fulfill agreements.

Private law or Civic Law

is the body of law that deals with relationships among private individuals

Public Law

refers to the body of law that deals with relationships between individuals and the government and governmental agencies

The ANA Code of Ethics for Nurses states:

that the "Nurse promotes advocates for, and strives to protect the health, safety, and rights of the patient"

Contractual Arrangements in Nursing

~A contract is the basis of the relationship between a nurse and an employer-for example; a nurse and a hospital or a nurse and a primary care provider.

Americans with Disabilities Act

~Fully implemented in 1994, prohibits discrimination on the basis of disability in employment, public services, and public accommodations.

Licensure

~License: a legal permit that a government agency grants to individuals to engage in the practice of a profession and to use a particular title. ~Nursing Licensure is mandatory in all states. ~The government agency issuing the RN license views the holding of that license to be a privilege, not a right. ~"Nurse don't have the right to practice nursing or to hold themselves out as nurses unless their nursing licenses are in good standing" ~Each state has a mechanism by which licenses can be revoked for just cause (e.g.incompetent nursing practice, professional misconduct, or conviction of a crime such as using illegal drugs or selling drugs illegally)

Express Consent

~May take the form of either oral or written agreement. ~The more invasive a procedure or the greater the potential for risk to the client, the greater the need for written permission.

Selected Legal Aspects of Nursing Practice

~Nurses need to know and apply legal aspect in their many different roles. ~Legal aspects also include the duty to report the nurse suspected of chemical impairment. ***

Rights of Citizenship

~Protect clients from harm and ensure consideration for their personal property rights, rights to privacy, confidentiality and other rights.

Sexual Harassment

~The equal employment opportunity commission (EEOC) defines sexual harassment as "unwelcoming sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature"

Collective Bargaining

~The formalized decision-making process between representatives of management (employer) and representatives of labor (employee) to negotiate wages and conditions of employment including work hours, working environment, and fringe benefits of employment (e.g. vacation time, sick leave, and personal leave)

Nurse's Role

~The nurse advocates for the client by verifying that the client received enough information to give consent. ~It is important for the nurse to assess the client's understanding and identify any misconceptions.

Credentialing

~The process of determining and maintaining competence in nursing practice. ~This is one way in which the nursing profession maintains standard or practice and accountability for the educational preparation of its members. ~This includes: licensure, certification, and accreditation.

Standards of Care

~The purpose is to protect the public. ~The skills and learning commonly possessed by members of a profession. ~These standards are used to evaluate the quality of care nurses provide and, therefore, become legal guidelines for nursing practice. ~They also need to remain competent through reading professional journals and attending continuing education and in-service programs.

Collective Bargaining Process involves:

~The recognition of a certified bargaining agent for the employees. This agent can be a union, a trade association, or a professional organizer.

Citizen

~The rights and responsibilities of the nurse in the role of citizen are the same as those of any individual under the legal system.

Certification

~The voluntary practice of validating that an individual nurse has met minimum standards of nursing competence in specialty areas such as maternal-child health, pediatrics, mental health, gerontology, and school nursing. ~National certification may be required to become license as an advanced practice nurse. ~Certification programs are conducted b the American Nurses Association (ANA) and by specialty nursing organizations.

Respondeat superior

~ancient legal doctrine ~"let the master answer" ~In other words, the master (employer) assumes responsibility for the conduct of the servant (employee) and can also be held responsible for professional negligence by the employee. ~The nurse's conduct is the hospital's responsibility.

Death and Related Issues

~some facilities permit do not resuscitate orders or protocols that specify the extent of invasive life-sustaining measures. ~Caring for clients who have agreed to medications, treatments, or equipment must be continued until the time for harvesting the organs has arrived.

Nurses who enter diversion programs (peer assistance programs)

~they are closely supervised within specific guidelines (e.g. working on a general nursing unit vs critical care area, no overtime, work only day shift, not allowed to administer or have access to narcotics). These programs require counseling and ongoing participation in support groups with periodic progress reports that may include random drug screening. ~allows for rehabilitation of the nurse ~allow the state board to protect the public while complying with the ADA.