Chapter 6 - Ethical and Legal Issues

Tort Law

- a civil wrong, other than a breach in contract, in which the law allows an injured person (client) to seek damages from a person (nurse) who caused the injury - intentional and unintentional

Organ Donation and Transplantation

- a client has the right to decide to become an organ donor and a right to refuse organ transplantation as a tx option - indicate whether or not want to be an organ donor on license and/or advance directive - a donor must be free of cancer and most illnesses - need to request permission from deceased person's family members(s) and/or NOK - donation of organs do not delay funeral arrangements - no obvious evidence that the organs were removed from the body - the family incurs no cost for removal of the organs

Minors

- a client under legal age as defined by state statue - they may not give legal consent, and consent must be obtained from a parent or the legal guardian; assent by the minor is impt. b/c it allows for communication of the minor's thoughts and feelings - parental or guardian consent should be obtained before tx is initiated for a minor except in the following cases: in an emergency, tx related to substance abuse, tx of an STI, HIV, testing and AIDS tx, birth control services, pregnancy, or psychiatric services, the minor is an emancipated minor or a court order or other legal authorization has been obtained

Safeguarding Valuables

- a client's valuables should be given to a family member or secured for safekeeping in a designated stored and locked location (e.g., the agency's safe), after which the location of the client's valuables should be documented in accordance with agency policy - many health care agencies require a client to sign a release to free the agency of responsibility for lost valuables - a client's wedding band may be taped in place, unless swelling of the hands or fingers is a risk - religious items (e.g., medals, scapulars) may be pinned to the client's gown if this is permitted by agency policy

Collective Bargaining

- a formalized decision-making process b/t representatives of management and representatives of labor to negotiate wages and conditions of employment - if parties cannot reach an agreement, the employees may call a strike or take other work actions - striking presents a moral dilemma to many nurses b/c nursing is a service to people

Client (patient) self-determination act

- a law that indicates clients must be provided with information about their rights to identify written directions about the care that they wish to receive in the event that they become incapacitated and are unable to make health care decisions - on admission to a health care facility, the client is asked about the existence of an advance directive, and if one exists, it must be documented and included as part of the medical record - 2 types: instructional and durable power of attorney

Defamation

- a legal risk area - a false communication that causes damage to someone's reputation, either in writing (libel) or verbally (slander)

Assault

- a legal risk area - a threat: occurs when a person puts another person in fear of a harmful or offensive contact - the victim fears and believes that harm will result b/c of the threat

Battery

- a legal risk area - an intentional touching of another's body w/o the other's consent

Invasion of Privacy

- a legal risk area - includes violating confidentiality, intruding on private client or family matters, and sharing client information with unauthorized persons

False Imprisonment

- a legal risk area - occurs when a client is not allowed to leave a health care facility when there is no legal justification to detain the client - occurs when restraining devices are used w/o an appropriate clinical need - the nurse should document circumstances in the medical record (such as a client wanting to leave AMA) to avoid allegations by the client that cannot be defended

Fraud

- a legal risk area - results from a deliberate deception intended to produce unlawful gains

Personal Health Information (PHI)

- a part of HIPAA - includes individually identifiable information that relates to the client's past, present, or future health, tx, and payment for health care services

Advocate

- a person who speaks up for or acts on the behalf of the client, protects the clients right to make their own decisions, and upholds the principle of fidelity - represents the client's viewpoint to others - avoids letting personal values influence situations and supports the client's decision, even when it conflicts with their own viewpoint

Risk Management

- a planned method to identify, analyze, and evaluate risks, followed by a plan for reducing the frequency of accidents and injuries

Duty

- a proof of liability - at the time of injury, a duty existed b/t the plaintiff and the defendant

Proximate Cause

- a proof of liability - the breach of the duty was the legal cause of injury to the client

Breach of Duty

- a proof of liability - the defendant breached duty to care of the patient

Damage or Injury

- a proof of liability - the plaintiff experienced injury or damages or both and can be compensated by law

Nurse Practice Act

- a regulation of nursing practice - a series of statutes that have been enacted by each state legislature to regulate the practice of nursing in that state - set educational requirements for the nurse, distinguish b/t nurses and medical practice, and define the scope of nursing practice - covers licensure requirements for protection of the public, grounds for disciplinary action, rights of the nurse licensee if a disciplinary action is taken - all nurses are responsible for knowing the details of this

Floating

- a regulation of nursing practice - an acceptable practice used by health care facilities to alleviate understaffing and overstaffing - legally, a nurse cannot legally refuse to float unless a union contract guarantees that nurses can work only in a specified area or the nurse can prove lack of knowledge for the performance of assigned tasks - nurses in a floating situation must not assume responsibility beyond their level of experience or qualification - nurses that float should inform the supervisor of any lack of experience in caring for the type of clients on the new nursing unit - a resource nurse who is skilled in the care of clients on the unit should be assigned to the float nurse; in addition, the float nurse should be given an orientation of the unit and the standards of care of the unit should be reviewed

Disciplinary Action

- a regulation of nursing practice - boards of nursing may deny, revoke, or suspend any license to practice as a RN, according to their statutory authority - some causes: unprofessional conduct, conduct that could affect the health and wellbeing of the public adversely, breach of client confidentiality, failure to use sufficient knowledge, skills, or nursing judgement; physical or verbal abuse, assuming duties w/o sufficient preparation, knowingly delegating inappropriate tasks, failure to maintain an accurate record for each client, falsifying a client's record, leaving a nursing assignment w/o properly notifying appropriate personnel

Standards of Care

- a regulation of nursing practice - guidelines that identify what the client can expect to receive in terms of nursing care - determine whether nurses have performed duties in an appropriate manner (if they don't they place themselves in jeopardy of legal action) - if the nurse is named as a defendant in a malpractice lawsuit and proceedings show that the nurse did not follow guidelines - the nurse's legal liability is clear

Employee Guidelines

- a regulation of nursing practice - respondeat superior, contracts, and institutional guidelines

Blood Transfusion Consent

- a type of consent - indicates that the client was informed of the benefits and risks of the transfusion - religious considerations

Immunization Consent

- a type of consent - may be required before the administration - indicates that the client was informed of the benefits and risks

Admission Agreement

- a type of consent - obtained at the time of admission and identify the health care agency's responsibility to the client

Surgical Consent

- a type of consent - obtained for all surgical or invasive procedures or diagnostic tests that are invasive - HCP needs to describe the risks and benefits prior to obtaining consent

Research Consent

- a type of consent - obtains permission from the client regarding the participation in a research study - informs the client about possible risks, consequences, and benefits

Special Consents

- a type of consent - required for the use of restraints, photographing the client, disposal of body parts during surgery, donating organs after death, or performing an autopsy (ask the NOK)

Negligence

- a type of legal liability - conduct that falls below the standard of care - includes acts of commission and acts of omission - e.g. medication errors that result in injury to the client; incorrect IV flow rates; falls that occur as a result of failure to provide safety to the client

Good Samaritan Laws

- a type of legal liability - encourage HCPs to assist in emergency situations and limit liability and offer legal immunity for persons helping in an emergency (provided they are given reasonable care) - immunity from suit applies when all conditions of the state law are met, such as that the HCP receives no compensation for the care provided and the care given is not intentionally negligent

Malpractice

- a type of legal liability - negligence on the part of the nurse - if the nurse owes a duty to the client and the nurse did not carry out the duty and the client was injured b/c the nurse did not complete the duty - proof of liability: duty, breach of duty, and proximate cause

Laws that Govern Nurses

- a type of legal liability - nurses are governed by civil and criminal law in roles as providers of services, employees of institutions, and private citizens - nurses have a personal and legal obligation to provide a standard of client care expected of a reasonably competent professional nurse - professional nurses are held responsible (liable) for harm resulting from their negligent acts of their failure to act

Professional Liability Insurance

- a type of legal liability - nurses need this for protection against malpractice lawsuits - having their own insurance provides nurses protection as individuals and allows the nurse to have an attorney, who has only the nurse's interests in mind

Controlled Substances

- a type of legal liability - the nurse should adhere to facility policies and procedures concerning administration of controlled substances, which are governed by laws - these must be kept locked securely, and only authorized personnel should have access - must be properly signed out for administration and a correct inventory must be maintained

Orthodox Judaism

- all body parts removed during autopsy must be buried with the body b/c it is believed that the entire body must be returned to the earth - organ donation may not be considered by family members - may be allowed with the rabbi's approval

Contracts

- an employee guideline - nurses are responsible for carrying out the terms of a contractual agreement with the employing agency and the client - the nurse-employee relationship is governed by established employee handbooks and client-care policies and procedures that create obligations, rights, and duties b/t those parties

Respondeat Superior

- an employee guideline - the employer is held liable for any negligent acts of an employee if the alleged negligent act occurred during the employment relationship and was within the scope's of the employee's responsibilities

Institutional Policies

- an employee guideline - written policies and procedures of the employing institution detail how nurses are to perform their duties - policies are specific and describe the expected behaviour of the nurse - although policies are not laws, courts generally rule against nurses who violate policies

Autonomy

- an ethical principle - respect for an individual's right to self-determination

Beneficence

- an ethical principle - the duty to do good to others and to maintain a balance between benefits and harms - do not want paternalism in which the HCP makes decisions for the client and encourages the client to act against their own choices

Justice

- an ethical principle - the equitable distribution of potential benefits and tasks determining the order in which clients should be cared for

Nonmaleficence

- an ethical principle - the obligation to do or cause no harm to another

Veracity

- an ethical principle - the obligation to tell the truth

Jehovah's Witness

- an organ transplant may be accepted, but the organ must be cleansed with a non-blood solution prior to transplantation

Durable Power of Attorney for Health Care

- appoints a person (health care proxy) chosen by the client to make health care decisions on the client's behalf when the client can no longer make decisions

Morals

- behaviour in accordance with customs or tradition, usually reflecting personal or religious beliefs

Values

- beliefs and attitudes that may influence behavior and the process of decision making

Islam (Muslim)

- body parts may not be removed or donated for transplantation

Ethical Principles

- codes that direct or govern nursing actions - autonomy, nonmaleficence, beneficence, justice, veracity, fidelity

Contract Law

- concerned with enforcement of agreements among private individuals - e.g. nurses and their employers

Civil Law

- concerned with relationships among persons and the protection of a person's rights - violation may cause harm to an individual or property - no grave threat to society exists - violation of contract or leads to torts

Criminal Law

- concerned with relationships b/t individuals and governments, and with acts that threaten society and its order; a crime is an offence against society that violates a law and is defined as a misdemeanor (less serious nature) or felony (more serious nature)

Health Insurance Portability and Accountability Act (HIPAA)

- describes how personal health information (PHI) may be used and how the client can obtain access to the information - requires health care agencies to keep PHI private, provides information to the client about the legal responsibilities regarding privacy, and explains the client's rights with regards to PHI - the client has various rights as a consumer of health care under this, and any client requests may need to be placed in writing, a fee may be attached to certain client requests - clients may file a complaint if they believe that privacy rights have been violated

The nurse's role (advance directives)

- discussing advance directives with the client opens the communication channel to establish what is important to the client and what the client may view as promoting life versus promoting dying - needs to ensure that the client has been provided with information about the right to identify written directions about the care that the client wishes to receive - determine on admission whether or not the client has an advance care directive - ensure that the HCP is aware of an ACD - some agencies have specific policies that prohibit the nurse from signing as a witness to a legal document

Emancipated Minors

- has established independence from their parents through marriage, pregnancy, or service in the armed forces, or by a court order - considered legally capable of signing an informed consent

Consents (or releases)

- legal documents that indicate the client's permission to perform surgery, a tx, procedure, or give information to a third party - the client must be informed, in understandable terms, of the risks and benefits of the surgery or tx, the consequences for or not having the surgery or procedure performed, and tx options - Q's must be answered prior to signing this - must be signed freely by the client w/o threat or pressure and must be witnessed by an adult - must be 18-years or older - a client may withdraw consent at any time - this can be waived for urgent medical or surgical intervention as long as institutional policy indicates - a client has the right to refuse information and waive the informed consent (and receive tx) - types: admission agreement and immunization, blood transfusion, surgical, research, and special consents

Documentation

- legally required by accredited agencies, state licensing laws, and state nurse and medical practice acts

Instructional Directives

- lists the medical treatment that a client chooses to omit or refuse if the client becomes unable to make decisions and is terminally ill.

Reporting Responsibilities

- nurses are required to report certain communicable diseases or criminal activities such as child or elder abuse or domestic violence; dog bite or another animal bite, gunshot or stab wounds, assaults, and homicides; and suicides to the appropriate authorities

Ethical Dilemma

- occurs when there is a conflict b/t 2 or more principles - no correct decision exists, and the nurse must make a choice b/t two alternatives that are equally unsatisfactory - may occur as a result of differences in cultural or religious beliefs - nurses need to use ethical reasoning

Catholic Church

- organ donation is acceptable

Orthodox Church

- organ donation is discouraged

Values Clarification

- process of analyzing one's own values to understand oneself more completely

Ethical Codes

- provide broad principles for determining and evaluating client care - not legally binding, but the board of nursing has authority (in most states) to reprimand nurses for unprofessional conduct that results in violation of this

Rights for the Mentally Ill

- psychiatric facilities are required to have this posted in a visible area - e.g. right to religious freedom, right to make purchases, right to be employed, right to dignity and respect, right to marry or divorce, right to an independent psychiatric examination

Confidentiality/Information Security

- refers to the protection of privacy of the client's PHI - a special relationship exists b/t the client and nurse, in which information discussed is not shared with a third party who is not directly involved with the client's care - nurses are bound to protect client confidentiality by most nurse practice acts, and by institutional and agency policies and procedures - disclosure of confidential information exposes the nurse to liability for invasion of the client's privacy - the nurse needs to protect the client from indiscriminate disclosure of health care information that may cause harm - medical records are confidential and the client has the right to read them - only staff members directly involved in care have legitimate access to a client's record - the medical record is stored in the records or the health information department after the D/C of the client from the health care facility - any information provided by the client during the research should not be reported in any manner that identifies the client and is not to be made accessible to anyone outside the research team

Client's (Patient's) Bill of Rights

- reflects acknowledgement of a client's right to participate in their own care with an emphasis on client autonomy - provides a list of the right's of the client and responsibilities that the hospital cannot violate - protects the client's ability to determine the level and type of care received; all health care agencies are required to have this posted in a visible area - e.g. right to an advance directive, right to expect that medical records are confidential, right to consent or refuse to take part in research

Hospital Staffing

- regulation of nursing practice - charges of abandonment may be made against nurses who "walk out" when staffing is inadequate - nurses in short staffing situations are obligated to make a report to the nursing administration

Do not resuscitate (DNR) order

- should be written if the client and HCP have made the decision that the client's health is deteriorating and the client chooses not to undergo CPR it is needed - the client or their legal representative must provide informed consent for the status - must be defined clearly so that other tx, nor refused by the client, will be continued - must be reviewed regularly according to agency policy and may need to be changed if the client's status changes

Ethics Committees

- takes an interprofessional approach to facilitaten dialogue regarding ethical dilemmas - develop and establish policies and procedures to facilitate the prevention and resolution

Mentally or Emotionally Incompetent Clients

- the NOK, appointed guardian (appointed by the court), or durable power of attorney for health care has legal authority to give consent - includes those that are declared incompetent, unconscious, under the influence of chemical agents (such as alcohol, drugs, or sedating agents), or has chronic dementia or other mental deficiency that impairs thought processes and ability to make decisions

Ethics

- the branch of philosophy concerned with the distinction between right and wrong on the basis of a body of knowledge, not only on the basis of opinions

Informed Consent

- the client's approval (or that of the legal representative) to have their body touched by a specific individual

Fidelity

- the duty to do what one has promised

HCP's Prescriptions

- the nurse is obligated to carry out this except when they believe that is inaccurate or incorrect - the nurse carrying out an inaccurate prescription may be legally responsible for any harm suffered by the client - if no resolution occurs regarding the prescription in question, the nurse should contact the nurse manager or supervisor

Ethical Reasoning

- the process of thinking through what one should do in an orderly and systematic manner to provide justification for actions based on principles - the nurse should gather all information to determine whether an ethical dilemma exists, examine their own values, verbalize the problem, consider possible courses of action, negotiate the outcome, and evaluate the action taken

Incident Reports

- used as a means of identifying risk situations and improving client care - the report form should not be copied or placed in the client's record - make no reference to the incident report in the client's record - the incident report is not a substitute for writing a note on the patient's file regarding the incident - the HCP must be notified

Legal Risk Areas

1. Assault 2. Battery 3. Invasion of Privacy 4. False Imprisonment 5. Defamation 6. Fraud

Advance Directives

1. Client (patient) self-determination act 2. Do not resuscitate (DNR) orders

Types of Law

1. Contract 2. Civil 3. Criminal 4. Tort

Legal Liability

1. Laws 2. Negligence and Malpractice 3. Professional Liability Insurance 4. Good Samaritan Laws 5. Controlled Substances

Regulations of Nursing Practice

1. Nurse Practice Act 2. Standards of Care 3. Employee Guidelines 4. Institutional Policies 5. Hospital Staffing 6. Floating 7. Disciplinary Action

Legal Safeguards

1. Risk Management 2. Incident Reports 3. Safeguarding Valuables 4. HCP's Prescriptions 5. Documentation 6. Client and Family Teachings

While preparing a client for surgery scheduled in 1-hour, the client states to the nurse: "I have changed my mind, I don't want this surgery." What should the nurse do?

The nurse should further investigate the client's request. The nurse should assess the client and explore the client and explore with the client his or her concerns about not wanting the surgery. The nurse would then withhold further surgical preparation and contact the surgeon to report the client's request so that the surgeon can discuss the consequences of not having the surgery with the client. Under no circumstances would the nurse continue with surgical preparation if the client has indicated that he or she does not want the surgery. It is the client's right to refuse tx.