NURS-316 Final: Lecture 30 (Ethical and Legal Issues)

Ethical Dilemmas

1.) Ethical dilemmas are situations that require individuals to make a choice between two equally unfavorable alternatives. 2.) Taking no action is considered an action taken. An ethical dilemma is a situation that requires an individual to make a choice between two equally unfavorable options. In this situation, there is evidence to support both moral right and wrongness related to each choice. This does not mean that all ethical issues are dilemmas: A dilemma only arises when there is no a clear reason to choose one option over another, and that there are desirable and undesirable outcomes to both.

Core Concepts (1)

1.) Ethics is a branch of philosophy that deals with systematic approaches to distinguishing right from wrong behavior. 2.) Bioethics is the term applied to these principles when they refer to concepts within the scope of medicine, nursing, and allied health.

Core Concepts (3)

1.) A "right" is defined as, "a valid, legally recognized claim or entitlement, encompassing both freedom from government interference or discriminatory treatment and an entitlement to a benefit or service." 2.) A right is absolute when there is no restriction whatsoever on the individual's entitlement. 3.) A legal right is one on which the society has agreed and formalized into law. A right is absolute when there are no restrictions on the individual's entitlement, whereas a legal right is one that has been enacted into law. Some rights are explicitly determined by laws, where others have been established by organizations such as the National League for Nursing or the American Hospital Association. Even though guidelines outlined by these organizations are not legally binding, nurses are still considered responsible for upholding the rights outlined.

A Model for Making Ethical Decisions

1.) Assessment. → Gather the subjective and objective data about a situation. Consider personal values as well as values of others involved in the ethical dilemma. 2.) Problem identification. 3.) Plan. → Explore the benefits and consequences of each alternative. → Consider principles of ethical theories. → Select an alternative. 4.) Implementation. → Act on the decision made and communicate the decision to others. 5.) Evaluation. → Evaluate outcomes. → A schematic of this model is presented in Figure 5-1. A case study using this decision making model is presented in Box 5-2.

Ethical Principles (1)

1.) Autonomy emphasizes the status of persons as autonomous moral agents whose rights to determine their destinies should always be respected. 2.) Beneficence refers to one's duty to benefit or promote the good of others. → The term "advocacy" means acting on another's behalf as a supporter or defender. → Peplau recognized client advocacy as an essential role for the psychiatric nurse.

Ethical Considerations (2)

1.) Christian ethics: → This principle is focused on the life and teachings of Jesus Christ, focusing on love, forgiveness, and honest. All decisions about right and wrong are centered in love for God and treating others with respect. → Do unto others as you would have them do unto you. 2.) Natural law theories: → The basis of these theories are the writings of St. Thomas Aquinas and propose that decisions about right and wrong are self-evident and determined by human nature. → Do good and avoid evil. → Human knowledge of the difference between good and evil directs decision-making. 3.) Ethical egoism: → This principle proposes that what is right is what is best for the individual making the decisions and that actions are based on what is advantageous to the decider. → Decisions are based on what is best for the individual making the decision.

Classifications Within Statutory and Common Law

1.) Civil law protects the private and property rights of individuals and businesses. → Torts: Is a violation of a civil law in which an individual has been wronged. One party claims wrongful conduct on the part of another and seeks compensation. This may be something done intentionally or unintentionally. → Contracts: Action, one party claims that the other party failed to fulfill an obligation and has breached their contract. 2.) Criminal law provides protection from conduct deemed injurious to the public welfare.

Legal Issues in Psychiatric/Mental Health Nursing (1)

1.) Confidentiality and right to privacy. → Health Insurance Portability and Accountability Act. → Doctrine of privileged communication. → Exception: A duty to warn. → Exception: Suspected child or elder abuse. 2.) Informed consent. → Knowledge. → Competency. → Free will. 1.) The Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution protect an individual's privacy. Most states have statues protecting confidentiality of client records. The Health Insurance Portability and Accountability Act protects client confidentiality on the federal level and gives individuals the rights to access their medical records, to have corrections made to their medical records, and to decide with whom their medical information may be shared. 2.) On top of federal laws, most states have statutes that pertain to the doctrine of privileged communication, which grants certain professionals privileges under which they may refuse to reveal information about, and communications with, clients. In most states, this applies to psychiatrists and attorneys, but in some instances, psychologists, clergy, and nurses are also included. A major exception to these laws is the "duty to warn." Established by a court case in 1974, this is the rule that a mental health professional has a duty not only to their client, but also to individuals who are being threatened by that client. Most states now recognize that therapists have legal obligations to prevent their clients from harming themselves or others. 3.) Another exception to these laws is in cases of suspected child or elder abuse. Every state requires that health care professionals report suspicion of child abuse to legal authorities, and many have similar statutes regarding elder abuse. 4.) Informed consent is the preservation and protection of an individual's right to decide whether to accept or reject treatment. There are instances when treatment may be performed without obtaining informed consent, but in most cases, a nurse must ensure that the three major elements of informed consent are addressed: → Knowledge: The client has received adequate information on which to base his or her decision. → Competency: The individual's cognition is not impaired to an extent that would interfere with decision-making or, if so, that the individual has a legal representative. → Free Will: The individual has given consent voluntarily without pressure or coercion from others. 5.) The Joint Commission has established specific standards regarding the use of seclusion and restraint. Some examples of current standards include: → Seclusion or restraint is discontinued at the earliest possible time. → Unless state law is more restrictive, orders for restraint or seclusion must be renewed every 4 hours for adults ages 18 and older, every 2 hours for children and adolescents ages 9 to 17, and every hours for children younger than 9 years. → An in-person evaluation must be conducted within 1 hour of initiating restraint or seclusion. → Patients who are simultaneously restrained and secluded must be continuously monitored by trained staff, either in person or through audio or video equipment. → Staff who are involved in restraining and secluding patients are trained to monitor the physical and psychological well-being of the patient. 6.) False imprisonment is the deliberate and unauthorized confinement of a person within fixed limits by the use of verbal or physical means. Healthcare workers may be charged with false imprisonment for restraining or secluding—against the wishes of the client—anyone having been admitted to the hospital voluntarily.

Introduction

1.) Legislation determines what is "right" or "good" within a society. 2.) Nursing competency and client care accountability are compromised when the nurse has inadequate knowledge about the laws that regulate the practice of nursing. Knowledge of the legal and ethical concepts presented in this chapter will enhance the quality of care the nurse provides in his or her psychiatric/mental health nursing practice and will also protect the nurse within the parameters of legal accountability.

Legal Issues in Psychiatric/Mental Health Nursing (5)

1.) Malpractice. → Black'sLaw Dictionary defines "malpractice" as an instance of negligence or incompetence on the part of a professional. 2.) Austin cites the basic elements of a nursing malpractice lawsuit: → A duty to the patient existed, based on the recognized standard of care. → A breach of duty occurred. → The client was injured. → Injury was directly caused by breach of a standard of care. Black's Law Dictionary defines malpractice as An instance of negligence or incompetence on the part of a professional. To succeed in a malpractice claim, a plaintiff must also prove proximate cause and damages.

Core Concepts (2)

1.) Moral behavior is defined as conduct that results from serious critical thinking about how individuals ought to treat others. 2.) Values are personal beliefs about what is important and desirable. 3.) Values clarification is a process of self-exploration through which individuals identify and rank their own personal values.

Ethical Principles (2)

1.) Nonmaleficence: → Abstaining from negative acts toward another. → Includes acting carefully to avoid harm. 2.) Justice: → Principle based on the notion of a hypothetical social contract between free, equal, and rational persons. → The concept of justice reflects a duty to treat all individuals equally and fairly. 3.) Veracity: → Principle that refers to one's duty to always be truthful.

Legal Issues in Psychiatric/Mental Health Nursing (4)

1.) Nursing liability: → The terms malpractice and negligence are often used interchangeably. 2.) Negligence: → The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. → Any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregards others' rights. Negligence is defined as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others' rights.

Legal Issues in Psychiatric/Mental Health Nursing (2)

1.) Restraints and seclusion. → Restraints generally refers to a set of leather straps used to restrain the extremities of an individual whose behavior is out of control and who poses an immediate risk to the physical safety and psychological well-being of him or herself and others. → Restraints are never to be used as punishment or for the convenience of staff. 2.) The Joint Commission has specific standards regarding the use of seclusion and restraint. → False imprisonment. 1.) The Joint Commission has established specific standards regarding the use of seclusion and restraint. Some examples of current standards include: → Seclusion or restraint is discontinued at the earliest possible time. → Unless state law is more restrictive, orders for restraint or seclusion must be renewed every 4 hours for adults ages 18 and older, every 2 hours for children and adolescents ages 9 to 17, and every hours for children younger than 9 years. → An in-person evaluation must be conducted within 1 hour of initiating restraint or seclusion. → Patients who are simultaneously restrained and secluded must be continuously monitored by trained staff, either in person or through audio or video equipment. → Staff who are involved in restraining and secluding patients are trained to monitor the physical and psychological well-being of the patient. 2.) False imprisonment is the deliberate and unauthorized confinement of a person within fixed limits by the use of verbal or physical means. Healthcare workers may be charged with false imprisonment for restraining or secluding—against the wishes of the client—anyone having been admitted to the hospital voluntarily.

Legal Considerations

1.) The Nurse Practice Act defines the legal parameters of professional and practical nursing. 2.) Types of laws: → Statutory law: Are those that have been enacted by a legislative body such as state legislature or the U.S. Congress. → Common law: Are derived from decisions that have been made in previous cases and evolve from court decisions resolving various issues. This laws may differ from state to state. 1.) The legal parameters of professional and practical nursing are defined within each state by the state's Nurse Practice Act. 2.) These documents are passed by the state legislature and in general are concerned with provisions such as: The definition of important terms, including nursing itself and the various types of nurses. 3.) A statement of the education and other training or requirements for licensure and reciprocity Broad statements that describe the scope of practice for various levels of nursing (APN, RN, LPN) 4.) Conditions under which a nurse's license may be suspended or revoked, and instructions for appeal The general authority and powers of the state board of nursing.

Ethical Issues in Psychiatric/Mental Health Nursing

1.) The right to treatment. → Anyone admitted to the hospital has the right to treatment. 2.) The right to refuse treatment (including medication) → Patients have the right to refuse treatment unless immediate intervention is required to prevent death or serious harm to the patient or another person. 3.) The right to the least restrictive treatment alternative → If a client can be adequately treated in an outpatient setting, they should not be hospitalized. → If hospitalized, the patient should not be sedated, restrained, or secluded unless less restrictive steps were unsuccessful. 1.) Anyone who is admitted to the hospital has the right to treatment, meaning that a patient cannot be hospitalized and then denied appropriate treatment for his or her diagnoses. 2.) Patients also have the right to refuse treatment, unless the treatment is required to prevent death or serious harm. In psychiatric care, however, patients may be hospitalized because they are of harm to themselves or others, and treatment may be administered without the consent of the patient in order to protect themselves or others. 3.) Patients are also entitled to the least-restrictive treatment alternative, meaning that they have the right to whatever level of treatment that is effective without limiting their freedom. The effort should be made to think in terms of restrictiveness when treating patients in a psychiatric setting.

#3 Sample Question

A nurse gave a client 5 mg of haloperidol (Haldol) for agitation. The client's chart was clearly stamped "Allergic HALDOL." The client suffered anaphylactic shock and died. How would the nurse's actions be labeled? A.) Intentional tort. B.) Negligence. C.) Battery. D.) Assault.

#1 Sample Question

An operating room nurse asks a psychiatric nurse, "How can you work with the mentally ill day in and day out?" The psychiatric nurse replies, "It's just the right thing to do." The psychiatric nurse is operating from which ethical framework? A.) Kantianism B.) Christian ethics C.) Ethical egoism D.) Utilitarianism

#2 Sample Question

As a last resort, an agitated, physically aggressive client is placed in four-point restraints. The client yells, "I'll sue you for assault and battery." The unit manager determines that the nurses are protected under which condition? A.) The client is voluntarily committed and poses a danger to others on the unit. B.) The client is voluntarily committed and has a history of being a danger to others. C.) The client is involuntarily committed because of a history of violent behavior. D.) The client is involuntarily committed and is refusing treatment.

Avoiding Liability

Catalano suggests proactive nursing actions in an effort to avoid nursing malpractice and lawsuit risk. 1.) Effective communication. 2.) Accurate and complete documentation in the medical record. 3.) Complying with the standards of care. 4.) Knowing the client. 5.) Practice within the nurse's level of competence and scope of practice. 1.) Catalano suggests the following proactive nursing actions in an effort to avoid nursing malpractice and the risk of lawsuits: 2.) Effective communication with patients and other caregivers. The SBAR model of reporting information, which stands for situation, background, assessment and recommendations, has been identified as a useful tool for effective communication with caregivers. Establishing rapport with clients encourages open and honest communication. 3.) Accurate and complete documentation in the medical record (the electronic medical record (EHR) has been identified the best way to document and share this information. The use of best sources for informatics is also identified as an important standard for quality and safety in nursing education ( Institute of Medicine, 2003). 4.) Complying standards of care including those established within the profession (such as ANA standards) and those identified by specific hospital policies. 5.) Knowing the client, which includes helping the client become involved in his or her care as well as understanding and responding to aspects of care in which they are dissatisfied. 6.) Practice within the nurse's level of competence and scope of practice includes not only adhering to professional standards (those of the ANA and State Boards of Nursing) but also keeping knowledge and nursing skills current through evidence-based literature, inservices, and continuing education.

#2 Sample Question (answer)

Correct answer: A 1.) As a threat to others, the client can be restrained despite objections and voluntary commitment.

#1 Sample Question (answer)

Correct answer: A 1.) Kantianism focuses on the morality of actions. Actions are judged as right or wrong based on ethical principles. The nurse's response indicates a Kantian perspective.

#3 Sample Question (answer)

Correct answer: B 1.) The nursing action was an unreasonable and careless act. The nurse was negligent and could be held liable for the client's death.

Legal Issues in Psychiatric/Mental Health Nursing (3)

Hospitalization: 1.) Voluntary admissions. 2.) Involuntary commitments. → Emergency commitments. → The mentally ill person in need of treatment. → Involuntary outpatient commitment. → The gravely disabled client. 1.) Voluntarily admission occurs when an individual makes an application to the institution for services and can stay as long as treatment is deemed necessary. He or she may sign out of the hospital at any time unless it is determined that they are harmful to themselves or others. 2.) There will be instances were involuntary commitment of an individual. If this occurs, the process must be conducted with federal and state laws in mind. → Emergency commitment should be sought when an individual displays behavior that is clearly an imminently dangerous to themselves or others. These commitments are time-limited and a court hearing must be scheduled to decide if the patient should be discharged or if additional hospitalization is necessary. → Involuntary commitment for mentally ill individuals in need of treatment may also occur. Most states have established guidelines for what constitutes "mentally ill." Generally this is defined as someone unable to make decisions regarding treatment, someone likely to harm themselves or others, or someone unable to fulfill basic personal needs. → Involuntary outpatient commitment (IOC) is a court-ordered process used to compel a person with mental illness to submit to outpatient treatment. Eligibility criteria for IOC include a history o repeated decompensation requiring involuntary hospitalization, likelihood of deterioration requiring inpatient commitment, presence of severe and persistent mental illness, risk of becoming homeless, violent or suicidal. → If it be determined that an individual is gravely disabled, a guardian, conservator, or committee will be appointed by the court to ensure the management of the person. 3.) Gravely disabled is generally defined as a condition in which an individual, as a result of mental illness, is in danger of serious physical harm resulting from inability to provide for basic needs

Ethical Considerations (1)

Theoretical perspectives: 1.) Utilitarianism is an ethical theory that promotes action based on the end result that produces the most good (happiness) for the most people. → The basis of this principle is "the greatest-happiness principle," and hold actions that promote happiness as right and those that actions that bring about unhappiness as wrong. Ethical decisions should be based on the end result of the decision. 2.) Kantianism suggests that decisions and actions are bound by a sense of duty. → This principle is in direct opposition to utilitarianism and argues that the end result of an action does not make it right or wrong, but rather the motivation for an action and a sense of duty determines right and wrong. → Directly opposed to utilitarianism.

Legal Issues in Psychiatric/Mental Health Nursing (6)

Types of lawsuits that occur in psychiatric nursing: 1.) Breach of confidentiality. 2.) Defamation of character. → Libel. → Slander. 3.) Invasion of privacy. 4.) Assault. 5.) Battery. 6.) False imprisonment. 1.) A nurse may be charged with breach of confidentiality for revealing aspects about a client's case, or even for revealing that an individual has been hospitalized, if that person can show that making this information known resulted in harm. 2.) A nurse may be liable for defamation of character if they share false or malicious information that is detrimental to the client's reputation. When this information is in writing it is referred to as libel. When it is spoken, it is called slander. 3.) Invasion of privacy charges can stem from searching a client without probable cause. 4.) Assault is an act that result's in genuine fear that he or she will be touched without consent. 5.) Battery is the unconsented touching of another person. Harm or injury does not have to occur for these charges to be legitimate. 6.) A nurse can be charged with false imprisonment for holding a client against his or her wishes outside of an emergency situation.