1. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 1 CHAPTER 2 Legal and Ethical Aspects of Nursing

2. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 2 Overview of the Legal System Laws  Prescribe how a person should act in society  Sanction acceptable behavior and prohibit unacceptable behavior  Provide protection for all members of the health care system

3. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 3 Overview of the Legal System Criminal Law  Conduct in issue is offensive to society in general  Conduct is detrimental to society as a whole  Involves public offenses (ie, robbery, murder, assault)  Law’s purpose is to punish for the crime and deter and prevent further crimes.

4. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 4 Overview of the Legal System Civil Law  Conduct violates a person’s rights  Conduct is detrimental to that individual  Involves an offense that is against an individual  Law’s purpose is to make the aggrieved person whole again, to restore them to where they were

5. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 5 Overview of the Legal System Two Ways Laws Are Established  Statutory Law Developed by federal, state, and local governments  Common Law Developed in response to specific legal questions brought before the court and usually follow precedent (previous rulings on an issue)

6. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 6 Overview of the Legal Process Civil Litigation  Lawsuit in a civil court  Begins when the plaintiff contacts an attorney Plaintiff  The complaining party Complaint  Statement by the plaintiff  Written and filed in the appropriate court  States the facts involved in the legal issues raised and outlines the damages

7. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 7 Overview of the Legal Process Defendant  States the facts involved in the legal issues raised and outlines the damages  The alleged person liable Damages  Compensation sought by the plaintiff Summons  Court order that notifies the defendant of the legal action

8. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 8 Overview of the Legal Process Answer  Detailed response to the charges outlined in the complaint  Usually prepared and filed by an attorney hired by the defendant  Will either admit or deny any or all of the allegations made in the complaint Discovery  Pretrial process allowing both sides to interview witnesses and/or look at documents

9. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 9 Overview of the Legal Process Depositions  Out-of-court statements made by a witness under oath Interrogatories  Written questions that must be answered in writing Verdict  Decision made after the evidence has been presented  Based on the facts of the case, the evidence and testimony presented, the credibility of the witnesses, and the laws that pertain to the issue

10. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 10 Overview of the Legal Process Appeal  Request a review of the decision  May be filed by either party if they disagree with the outcome of the lawsuit Criminal Trial  Defendant is arrested for a crime against the people.  People’s attorney and the defendant’s attorney present their cases in court.  The judge or jury then deliberates.

11. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 11 Overview of the Legal Process Deliberation  Decide the guilt or innocence of the defendant Not Guilty Verdict  Defendant will be released from custody Guilty Verdict  Sentence (penalty) will be decided based on the severity of the crime, the defendant’s past criminal record, and the applicable laws.

12. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 12 Overview of the Legal Process Liability  Legal responsibility  A nurse can be charged with civil or criminal liability depending on the particular circumstances surrounding the case.

13. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 13 Overview of the Legal Process Legal Relationships  Accountability Being responsible for one’s own actions  Legal Relationship Nurse-patient relationship  When the nurse assumes responsibility for the patient’s care Failure to provide care to the expected level of expertise gives rise to legal liability.

14. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 14 Overview of the Legal Process Legal Relationships  Advocate One who will defend or plead a cause or issue on behalf of another. The nurse accepts the role of an advocate for the patient. A nurse advocate has a legal and ethical obligation to safeguard the patient’s interests.

15. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 15 Overview of the Legal Process Regulation of Practice  Standards of Care Acts that are permitted to be performed or are prohibited from being performed. Give direction to the practicing nurse, defining what should or should not be done for patients. Every nurse is obligated to know and follow the established standards of care. Failure to adhere to these standards gives rise to legal liability.

16. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 16 Overview of the Legal Process Regulation of Practice  Standards of Care The legal test is what a reasonably prudent (wise) nurse of similar education and experience would have done under similar circumstances.

17. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 17 Overview of the Legal Process Regulation of Practice  Scope of Nursing Practice Each licensed practical/vocational nurse must be familiar with his or her scope of practice. The nurse CANNOT use ignorance as an excuse. Every nurse needs to know what she or he can and cannot do while providing nursing care.  Nurse Practice Acts Define and limit the scope of nursing practice

18. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 18 Overview of the Legal Process Regulation of Practice  Licensure All licensed practical/vocational nurses must apply for licensure in the state in which they wish to practice. Applicants are carefully screened. Upon approval by the board, the applicant is eligible to take the computerized licensing examination at a testing center.

19. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 19 Overview of the Legal Process Regulation of Practice  Licensure Once a license is granted, it can be suspended or revoked (taken away) for unprofessional, unethical, immoral, and/or criminal conduct.  Interstate Compact Allows multistate practice of nursing The nurse must be licensed in her or his home state, and privileges are then granted to practice in other states that have signed the interstate compact.

20. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 20 Overview of the Legal Process Legal Issues  Malpractice (Professional Negligence) Commission  Doing an act Omission  Not doing an act Legal action that a nurse may be charged with for failing to meet the standards of care

21. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 21 Overview of the Legal Process Legal Issues  Malpractice (Professional Negligence) Elements that must be present:  Duty exist: The nurse-patient relationship establishes a duty.  Breach of the duty: The nurse fails to perform the duty in a reasonable, prudent manner.  Harm occurs: This does not have to be physical injury.  Proximate cause: The breach of duty was the proximate cause of the harm.

22. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 22 Overview of the Legal Process Legal Issues  Malpractice (Professional Negligence) Malpractice insurance  The nurse may want to purchase individual coverage even if the employing institution carries insurance.  Personal malpractice insurance provides more protection for the nurse while off and on duty.  Most institutions’ policies cover only liability if the nurse is on duty and acting within the proper capacity.

23. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 23 Overview of the Legal Process Patients’ Rights  The Patient’s Bill of Rights Developed by the American Hospital Association in 1972 Goal is to promote the public’s understanding of their rights and responsibilities as consumers of health care.

24. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 24 Overview of the Legal Process Informed Consent  A person agrees to allow a particular treatment based on full disclosure of the facts needed to make an intelligent (informed) decision.  Consent must be obtained before any invasive treatment or procedure.  Patient needs to be aware of the benefits of the treatment, the risks involved, any alternative treatments, and the consequences of refusing the treatment.

25. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 25 Overview of the Legal Process Informed Consent  The patient has the right to accept or reject the proposed care.  Failure to secure informed consent may result in civil liability for battery. Civil battery  Unlawful touching of a person; an intent to harm is NOT necessary.

26. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 26 Overview of the Legal Process Confidentiality  The nurse has a duty to protect information about a patient no matter how that information is received.  Failure to maintain confidentiality gives rise to legal liability, and legal remedies exist to address confidentiality breaches.  Health Insurance Portability and Accountability Act of 1996 (HIPAA) set rules and limits on who can look at and receive health care information.

27. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 27 Overview of the Legal Process Medical Records  Medical records are NOT public documents.  The information they contain must be guarded.  Records may be used by both parties in a lawsuit to argue facts of the case.  All entries in the medical record must be permanent, accurate, complete, and legible.

28. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 28 Overview of the Legal Process Invasion of Privacy  The right to be left alone and go unnoticed if the patient chooses  Legal liability may occur in Exposing the patient’s body parts unnecessarily Discussing the patient inappropriately Disclosing information about the patient Using any unauthorized patient information

29. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 29 Overview of the Legal Process Reporting Abuse  The law prescribes when a health care professional must report certain information to authorities (certain communicable diseases, gunshot wounds, signs of abuse).  The health care professional is protected from liability when acting in good faith.  Child Abuse Prevention Treatment Act of 1973 Act made reporting of child abuse mandatory. Health care professionals may face fines and/or imprisonment if they fail to report suspected cases of child abuse.

30. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 30 Overview of the Legal Process Practitioner-Assisted Suicide  Form of active euthanasia  The practitioner taking an active role in helping to end a patient’s life

31. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 31 Overview of the Legal Process How to Avoid a Lawsuit  Provide compassionate, competent nursing care Nurse-patient relationship must be one based on trust and respect. Use open and honest communication. Follow the standards of care and adhere to the scope of practice for a licensed practical/vocational nurse.

32. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 32 Overview of the Legal Process How to Avoid a Lawsuit  Good Samaritan Law Provides immunity from liability in certain circumstances Encourages assistance in emergencies occurring outside of a medical facility by providing protection against liability  Proper documentation Medical record is used to prove that the standards of care were met (or were not met). “IF IT ISN’T CHARTED, IT WASN’T DONE.”

33. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 33 Ethical Aspects Development of Ethical Principles  Ethics Values that influence a person’s behavior An individual’s feelings and beliefs about what is right and wrong  Customs Habits, ways of acting Members of a family expected to behave in a certain way Influenced by religious teachings

34. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 34 Ethical Aspects Development of Ethical Principles  Values Personal beliefs about the worth of an object, idea, a custom, or an attitude Develop over time and change as necessary Influences behavior behavior and decisions Learned through experience, observation, and reasoning  Values Clarification The process of self-evaluation that helps a person gain insight into individually held values

35. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 35 Ethical Aspects Development of Ethical Principles  Ethical Dilemmas Situations that do not have a clear right or wrong answer  Identify the problem.  Assess the situation completely.  Consider any ethical principles that might apply.

36. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 36 Ethical Aspects Ethical Principles  Respect for Persons All human life is sacred.  No one person is more important than another.  Each patient has the same worth as another and is always entitled to respect. Autonomy  Personal freedom of choice  A right to be independent and make decisions  Nurse does not have the right to make decisions for the patient.

37. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 37 Ethical Aspects Ethical Principles  Beneficence Doing what is good Nurse must promote the well-being of all patients.  Nonmaleficence To do no harm Nurse has a ethical and legal duty to prevent harm to a patient.  Justice The concept of what is fair All patients have the same right to nursing care.

38. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 38 Ethical Aspects Code of Ethics  Serves as a way to regulate the actions of nurses and gives guidelines for ethical behavior  Promote competent, trustworthy, and accountable health care practitioners in order to safeguard society

39. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 39 Ethical Aspects National Federation of Licensed Practical/Vocational Nurses Code of Ethics  Know and function within the scope of practice for an LPN/LVN  Maintain patient confidences  Provide health care without discrimination  Maintain a high degree of professional and personal behavior  Take an active role in the development of the LPN/LVN profession

40. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 40 Ethical Aspects Reporting Unethical Behavior  Unethical behavior Failing to perform the duties of a competent, caring nurse  Each member of the nursing profession has a duty to report behavior that does not meet the established standards. Follow the proper chain of command Explain the facts as clearly as possible Documentation of the incident: objective, accurate, when and where, other pertinent facts

41. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 41 Ethical Aspects Ethical Issues  Practitioner-Assisted Suicide (PAS) Legal status is unsettled. ANA has taken a firm stand against PAS.  States it is not consistent with the philosophy of nursing Right to autonomy and the right to self-determination are issues used to support PAS.

42. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 42 Ethical Aspects Ethical Issues  Right to Refuse Treatment A competent adult has the right to determine what does or does not happen to him or her.  Even if the refusal may or will result in death Advance directive  Specifies what life-saving treatments he or she does or does not wish to have Living will  Becomes effective when the patient is incapacitated

43. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 43 Ethical Aspects Ethical Issues  Right to Refuse Treatment Health care proxy  Durable power of attorney  A person to make decisions regarding medical treatment if the patient is unable to make them

44. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 44 Ethical Aspects Do Not Resuscitate Orders  The patient is usually incapacitated with little hope of recovery.  Physician will consult with the family before writing a DNR order.  Nurse has a duty to follow the order.

45. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 45 Ethical Aspects Refusal to Treat  The nurse cannot refuse to care for a patient because she disagrees with the decisions the patient makes. Nurse does not have to participate in the procedure but cannot refuse to provide care after procedure. Do not abandon the patient, but ask for another assignment.

46. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 46 Ethical Aspects Refusal to Treat  The nurse DOES NOT have the legal right to refuse to care for a person with an infectious disease. Standard precautions should be applied to every patient and therefore the nurse is at no greater risk. The patient has the right to receive care and the nurse has the responsibility to provide care.

47. Mosby items and derived items © 2006, 2003, 1999, 1995, 1991 by Mosby, Inc. Slide 47 Ethical Aspects Genetic Research  The National Institutes of Health’s Human Genome Project Comprehensive study of the genes that make up the human body Ethical issues  How the information will be used  Who owns the information  Who will have access to the information