chapter 9 Legal Issues

Tort (nursing liability)

A tort is a wrongful act that results in injury, loss, or damage. Torts may be either unintentional or intentional. Unintentional Torts: Negligence and Malpractice. Negligence is an unintentional tort that involves causing harm by failing to do what a reasonable and prudent person would do in similar circumstances. Malpractice is a type of negligence that refers specifically to professionals such as nurses and physicians (Guido, 2013). Clients or families can file malpractice lawsuits in any case of injury, loss, or death. For a malpractice suit to be successful, that is, for the nurse, physician, or hospital or agency to be liable, the client or family needs to prove the following four elements: Duty: A legally recognized relationship (i.e., physician to client, nurse to client) existed. The nurse had a duty to the client, meaning that the nurse was acting in the capacity of a nurse. Breach of duty: The nurse (or physician) failed to conform to standards of care, thereby breaching or failing the existing duty. The nurse did not act as a reasonable, prudent nurse would have acted in similar circumstances. Injury or damage: The client suffered some type of loss, damage, or injury. Causation: The breach of duty was the direct cause of the loss, damage, or injury. In other words, the loss, damage, or injury would not have occurred if the nurse had acted in a reasonable, prudent manner. Not all injury or harm to a client can be prevented, nor do all client injuries result from malpractice. The issues are whether or not the client's actions were predictable or foreseeable (and, therefore, preventable) and whether or not the nurse carried out appropriate assessment, interventions, and evaluation that met the standards of care. In the mental health setting, lawsuits most often are related to suicide and suicide attempts. Other areas of concern include clients harming others (staff, family, or other clients), sexual assault, and medication errors. Intentional Torts. Psychiatric nurses may also be liable for intentional torts or voluntary acts that result in harm to the client. Examples include assault, battery, and false imprisonment. Assault involves any action that causes a person to fear being touched in a way that is offensive, insulting, or physically injurious without consent or authority. Examples include making threats to restrain the client to give him or her an injection for failure to cooperate. Battery involves harmful or unwarranted contact with a client; actual harm or injury may or may not have occurred. Examples include touching a client without consent or unnecessarily restraining a client. False imprisonment is defined as the unjustifiable detention of a client such as the inappropriate use of restraint or seclusion. Proving liability for an intentional tort involves three elements (Guido, 2013): The act was willful and voluntary on the part of the defendant (nurse). The nurse intended to bring about consequences or injury to the person (client). The act was a substantial factor in causing injury or consequences. (Videbeck 158) Videbeck, Sheila L. Lippincott CoursePoint for Videbeck: Psychiatric-Mental Health Nursing, 7th Edition. CoursePoint, 10/3/2016. VitalBook file.

release from the hospital (rights of the client)

Clients admitted to the hospital voluntarily have the right to leave, provided they do not represent a danger to themselves or others. They can sign a written request for discharge and can be released from the hospital against medical advice. If a voluntary client who is dangerous to himself or herself or to others signs a request for discharge, the psychiatrist may file for a civil commitment to detain the client against his or her will until a hearing can take place to decide the matter. While in the hospital, the committed client may take medications and improve fairly rapidly, making him or her eligible for discharge when he or she no longer represents a danger. Some clients stop taking their medications after discharge and once again become threatening, aggressive, or dangerous. Mental health clinicians increasingly have been held legally liable for the criminal actions of such clients; this situation contributes to the debate about extended civil commitment for dangerous clients.

Least Restrictive Environment(client rights )

Clients have the right to treatment in the least restrictive environment appropriate to meet their needs. This concept was central to the deinstitutionalization movement discussed in Chapters 1 and 4. It means that a client does not have to be hospitalized if he or she can be treated in an outpatient setting or in a group home. It also means that the client must be free of restraint or seclusion unless it is necessary. The Joint Commission (JTC) develops and updates standards for Restraint and Seclusion as part of their accreditation procedures. This is usually done every 2 years, with accreditation manuals provided to facilities/organizations that are or seek to be accredited. Otherwise, these standards are available for purchase only. Restraint is the direct application of physical force to a person, without his or her permission, to restrict his or her freedom of movement. The physical force may be human or mechanical or both. Human restraint occurs when staff members physically control the client and move him or her to a seclusion room. Mechanical restraints are devices, usually ankle and wrist restraints, fastened to the bed frame to curtail the client's physical aggression, such as hitting, kicking, and hair pulling. (Videbeck 155) Seclusion is the involuntary confinement of a person in a specially constructed, locked room equipped with a security window or camera for direct visual monitoring. For safety, the room often has a bed bolted to the floor and a mattress. Any sharp or potentially dangerous objects, such as pens, glasses, belts, and matches, are removed from the client as a safety precaution. Seclusion decreases stimulation, protects others from the client, prevents property destruction, and provides privacy for the client. The goal is to give the client the opportunity to regain physical and emotional self-control. Short-term use of restraint or seclusion is permitted only when the client is imminently aggressive and dangerous to himself or herself or to others, and all other means of calming the client have been unsuccessful (see Chapter 11). For adult clients, use of restraint and seclusion requires a face-to-face evaluation by a licensed independent practitioner within 1 hour of restraint or seclusion and every 8 hours thereafter, a physician's order every 4 hours, documented assessment by the nurse every 1 to 2 hours, and close supervision of the client. For children, the physician's order must be renewed every 2 hours, with a face-to-face evaluation every 4 hours. The nurse assesses the client for any injury and provides treatment as needed. Staff must monitor a client in restraints continuously on a 1:1 basis for the duration of the restraint period. A client in seclusion is monitored 1:1 for the first hour and then may be monitored by audio and video equipment. The nurse monitors and documents the client's skin condition, blood circulation in hands and feet (for the client in restraints), emotional well-being, and readiness to discontinue seclusion or restraint. He or she observes the client closely for side effects of medications, which may be given in large doses in emergencies. The nurse or designated care provider also implements and documents offers of food, fluids, and opportunities to use the bathroom per facility policies and procedures. As soon as possible, staff members must inform the client of the behavioral criteria that will be used to determine whether to decrease or to end the use of restraint or seclusion. Criteria may include the client's ability to verbalize feelings and concerns rationally, to make no verbal threats, to have decreased muscle tension, and to demonstrate self-control. If a client remains in restraints for 1 to 2 hours, two staff members can free one limb at a time for movement and exercise. Frequent contact by the nurse promotes ongoing assessment of the client's well-being and self-control. It also provides an opportunity for the nurse to reassure the client that restraint is a restorative, not a punitive, procedure. Following release from seclusion or restraint, a debriefing session is required within 24 hours. The nurse should also offer support to the client's family, who may be angry or embarrassed when the client is restrained or secluded. A careful and thorough explanation about the client's behavior and subsequent use of restraint or seclusion is important. If the client is an adult, however, such discussion requires a signed release of information. In the case of minor children, signed consent is not required to inform parents or guardians about the use of restraint or seclusion. Providing the family with information may help prevent legal or ethical difficulties. It also keeps the family involved in the client's treatment. (Videbeck 156) Videbeck, Sheila L. Lippincott CoursePoint for Videbeck: Psychiatric-Mental Health Nursing, 7th Edition. CoursePoint, 10/3/2016. VitalBook file.

Rights of the client and related issues

Clients receiving mental health care retain all civil rights afforded to all people except the right to leave the hospital in the case of involuntary commitment (discussed later). They have the right to refuse treatment, to send and to receive sealed mail, and to have or refuse visitors. Any restrictions (e.g., mail, visitors, and clothing) must be made for a verifiable, documented reason. These decisions can be made by a court or a designated decision-making person or persons, for example, a primary nurse or treatment team, depending on local laws or regulations. Examples include the following: A suicidal client may not be permitted to keep a belt, shoelaces, or scissors because he or she may use these items for self-harm. A client who becomes aggressive after having a particular visitor may have that person restricted from visiting for a period of time. A client making threatening phone calls to others outside the hospital may be permitted only supervised phone calls until his or her condition improves. The American Psychiatric Association (APA) developed Principles for the Provision of Mental Health and Substance Abuse Treatment Services. Many states, patient advocacy groups, and treatment centers have developed their own bill of rights based on these principles. The mental health patient's bill of rights is summarized in Box 9.1

timetables for seclusion and restraints

For adult clients, use of restraint and seclusion requires a face-to-face evaluation by a licensed independent practitioner within 1 hour of restraint or seclusion and every 8 hours thereafter, a physician's order every 4 hours, documented assessment by the nurse every 1 to 2 hours, and close supervision of the client. For children, the physician's order must be renewed every 2 hours, with a face-to-face evaluation every 4 hours. The nurse assesses the client for any injury and provides treatment as needed. Staff must monitor a client in restraints continuously on a 1:1 basis for the duration of the restraint period. A client in seclusion is monitored 1:1 for the first hour and then may be monitored by audio and video equipment.

mandatory outpatient treatment (rights of the client)

Legally mandated or assisted outpatient treatment is the requirement that clients continue to participate in treatment on an involuntary basis after their release from the hospital into the community. This may involve taking prescribed medication, keeping appointments with health-care providers for follow-up, and attending specific treatment programs or groups (O'Reilly et al., 2012). In the United States, 45 states have laws for some type of mandated outpatient treatment. The five states that don't have assisted outpatient treatment are Connecticut, Maryland, Massachusetts, New Mexico, and Tennessee (Treatment Advocacy Center, 2015). Benefits of mandated treatment include shorter inpatient hospital stays, although these individuals may be hospitalized more frequently; reduced mortality risk for clients considered dangerous to self or others; and protection of clients from criminal victimization by others. In addition, after an initial financial investment, assisted outpatient treatment is more cost-effective than repeated involuntary hospital stays (Swanson et al., 2013) Mandated outpatient treatment is sometimes also called conditional release or outpatient commitment. Court-ordered outpatient treatment is most common among persons with severe and persistent mental illness who have had frequent and multiple contacts with mental health, social welfare, and criminal justice agencies. This supports the notion that clients are given several opportunities to voluntarily comply with outpatient treatment recommendations and that court-ordered treatment is considered when those attempts have been repeatedly unsuccessful (Munetz et al., 2014). The court's concern is that clients with psychiatric disorders have civil rights and should not be unreasonably required to participate in any activities against their will. Another concern is that once court-ordered treatment was permitted, it would be used with ever-increasing numbers of people. However, such an increase has not occurred. Communities counter that they deserve protection against dangerous people with histories of not taking their medications and who may become threats.

involuntary hospitalization (rights of the client)

Most clients are admitted to inpatient settings on a voluntary basis, which means they are willing to seek treatment and agree to be hospitalized. Some clients, however, do not wish to be hospitalized and treated. Health-care professionals respect these wishes unless clients are a danger to themselves or others (i.e., they are threatening or have attempted suicide or represent a danger to others). Clients hospitalized against their will under these conditions are committed to a facility for psychiatric care until they no longer pose a danger to themselves or to anyone else. Each state has laws that govern the civil commitment process, but such laws are similar across all 50 states. Civil commitment or involuntary hospitalization curtails the client's right to freedom (the ability to leave the hospital when he or she wishes). All other client rights, however, remain intact. A person can be detained in a psychiatric facility for 48 to 72 hours on an emergency basis until a hearing can be conducted to determine whether or not he or she should be committed to a facility for treatment for a specified period. Many states have similar laws governing the commitment of clients with substance abuse problems who represent a danger to themselves or others when under the influence.

Nursing liability

Nurses are responsible for providing safe, competent, legal, and ethical care to clients and families. Professional guidelines such as the American Nurses Association's (ANA's) Code of Ethics for Nurses with Interpretive Statements and the ANA's Psychiatric-Mental Health Nursing: Scope and Standards of Practice outline the nurse's responsibilities and provide guidance (see Chapter 1). Nurses are expected to meet standards of care, meaning the care they provide to clients meets set expectations and is what any nurse in a similar situation would do. Standards of care are developed from professional standards (cited earlier in this paragraph), state nurse practice acts, federal agency regulations, agency policies and procedures, job descriptions, and civil and criminal laws. (Videbeck 158) Videbeck, Sheila L. Lippincott CoursePoint for Videbeck: Psychiatric-Mental Health Nursing, 7th Edition. CoursePoint, 10/3/2016. VitalBook file.

Prevention of liability

Nurses can minimize the risk for lawsuits through safe, competent nursing care and descriptive, accurate documentation. Box 9.3 highlights ways to minimize the risk for liability. BOX 9.3 STEPS TO AVOID LIABILITY Practice within the scope of state laws and nurse practice act. Collaborate with colleagues to determine the best course of action. Use established practice standards to guide decisions and actions. Always put the client's rights and welfare first. Develop effective interpersonal relationships with clients and families. Accurately and thoroughly document all assessment data, treatments, interventions, and evaluations of the client's response to care. (Videbeck 158) Videbeck, Sheila L. Lippincott CoursePoint for Videbeck: Psychiatric-Mental Health Nursing, 7th Edition. CoursePoint, 10/3/2016. VitalBook file.

Duty to warn third parties (client rights)

One exception to the client's right to confidentiality is the duty to warn, based on the California Supreme Court decision in Tarasoff vs. Regents of the University of California (Box 9.2). As a result of this decision, mental health clinicians may have a duty to warn identifiable third parties of threats made by clients, even if these threats were discussed during therapy sessions otherwise protected by privilege. On the basis of the Tarasoff decision, many states have enacted laws regarding warning a third party of threats or danger. These laws vary from state to state. Some states impose a mandatory duty to warn, others have laws stating the clinician "may" warn. Still other states base decisions on case law, and some states have no statutory or case law to cover warning a third party. So if a case were litigated in a state with no laws, the judge or jury could make a decision on a case-by-case basis. When making a decision about warning a third party, the clinician must base his or her decision on the following: Is the client dangerous to others? Is the danger the result of serious mental illness? Is the danger serious? Are the means to carry out the threat available? Is the danger targeted at identifiable victims? Is the victim accessible? (Videbeck 157) For example, if a man were admitted to a psychiatric facility stating he was going to kill his wife, the duty to warn his wife is clear. If, however, a client with paranoia were admitted saying, "I'm going to get them before they get me," but providing no other information, there is no specific third party to warn. Decisions about the duty to warn third parties are usually made by psychiatrists or by qualified mental health therapists in outpatient settings. (Videbeck 157) Videbeck, Sheila L. Lippincott CoursePoint for Videbeck: Psychiatric-Mental Health Nursing, 7th Edition. CoursePoint, 10/3/2016. VitalBook file.

Insanity defense

One legal issue that sparks controversy is the insanity defense, with insanity having a legal meaning but no medical definition. The argument that a person accused of a crime is not guilty because that person cannot control his or her actions or cannot understand the wrongfulness of the act is known as the M'Naghten Rule. When the person meets the criteria, he or she may be found not guilty by reason of insanity. The public perception of the insanity defense is that it is used frequently and that it is usually successful; that is, the person accused of the crime "gets off" and is free immediately. In actuality, this defense can be used only when the person meets the criteria for an insanity defense. So it is used infrequently, and is not usually successful. However, when the insanity defense is successful, it is widely publicized, leading to the perception that it is commonplace. A few states allow a verdict of guilty but insane when the client has an insanity defense. Four states—Idaho, Kansas, Montana, and Utah—have abolished the insanity defense, although all but Kansas will allow a verdict of guilty but insane. Ideally, this means that the person is held responsible for the criminal behavior, but can receive treatment for mental illness. Critics of this verdict, including the APA, argue that people do not always receive needed psychiatric treatment and that this verdict absolves the legal system of its responsibility. (Videbeck 157) Videbeck, Sheila L. Lippincott CoursePoint for Videbeck: Psychiatric-Mental Health Nursing, 7th Edition. CoursePoint, 10/3/2016. VitalBook file.

timetables for seclusions and restraints

Short-term use of restraints and seclusion in Acute Care Mental Health Facility Face-to-face evaluation in 1 hour, every 8 hours (every 4 hours for children) Physician's order every 4 hours (every 2 hours for children) (this is different from the med surge environment where the restraint must be renewed every 24 hours) Documented assessment by nurse every 1 to 2 hours Close supervision of client Debriefing session within 24 hours after release from seclusion or restraint

Conservatorship and guardianship (rights of the clients)

The appointment of a conservator or legal guardian is a separate process from civil commitment. People who are gravely disabled; are found to be incompetent; cannot provide food, clothing, and shelter for themselves even when resources exist; and cannot act in their own best interests may require appointment of a conservator or legal guardian. In these cases, the court appoints a person to act as a legal guardian who assumes many responsibilities for the person, such as giving informed consent, writing checks, and entering contracts. The client with a guardian loses the right to enter into legal contracts or agreements that require a signature (e.g., marriage or mortgage). This affects many daily activities that are usually taken for granted. Because guardians speak for clients, the nurse must obtain consent or permission from the guardian. In some states, the term conservator refers to a person assigned by the court to manage all financial affairs of the client. This can include receiving the client's disability check, paying bills, making purchases, and providing the client with spending money. Some states include the management of the client's financial affairs under legal guardianship. Some states distinguish between conservator of the person (synonymous with legal guardian) and conservator of financial affairs only—also known as power of attorney for financial matters.

Confidentiality(client rights )

The protection and privacy of personal health information is regulated by the federal government through the Health Insurance Portability and Accountability Act (HIPAA) of 1996. The law guarantees the privacy and protection of health information and outlines penalties for violations. Mandatory compliance with the Final HIPAA Privacy Rule took effect on April 14, 2003, for all health-care providers, including individuals and organizations that provide or pay for care. Both civil (fines) and criminal (prison sentences) penalties exist for violation of patient privacy. Protected health information is any individually identifiable health information in oral, written, or electronic form. Mental health and substance abuse records have additional special protection under the privacy rules. Some believe that these strict confidentiality policies may pose a barrier to collaboration among providers and families. In community settings, compliance with the privacy rule has decreased communication and collaboration among providers and communication with family caregivers, which may have a negative impact on patient care as well as the rights of families. Education programs for clients and families about the privacy regulation as well as establishment of open lines of communication between clients and families before a crisis occurs may help decrease these difficulties (Wainwright et al., 2015). Also, dealing with the distress of relatives directly can be beneficial and help families feel included, rather than excluded. (Videbeck 157) Videbeck, Sheila L. Lippincott CoursePoint for Videbeck: Psychiatric-Mental Health Nursing, 7th Edition. CoursePoint, 10/3/2016. VitalBook file.

patients bill of rights (highlights)

To be informed about benefits, qualifications of all providers, available treatment options, and appeals and grievance procedures Least restrictive environment to meet needs Confidentiality Choice of providers Treatment determined by professionals, not third-party payers Parity Nondiscrimination All benefits within scope of benefit plan Treatment that affords greatest protection and benefit Fair and valid treatment review processes Treating professionals and payers held accountable for any injury caused by gross incompetence, negligence, or clinically unjustified decision

deontological principles

• Autonomy: right to self-determination, independence • Beneficence: duty to benefit others or promote good • Nonmaleficence: requirement to do no harm • Justice: fairness • Veracity: honesty, truthfulness • Fidelity: obligation to honor commitments, contracts