1. Legal and Ethical Aspects in Clinical Practice
Chapter 9:
Legal and Ethical Aspects in Clinical Practice
Copyright © 2012, 2007 Mosby, Inc., an affiliate of Elsevier Inc. All rights reserved.

2. Historical Review Roman Law
Concerned with legal status of mentally disabled
Middle Ages
Incompetence decided by jury
Mentally ill committed to care of friend

3. Historical Events In the United States:
1600s Cared for by families or wandered
1752 First hospital for mentally ill
Dorothea Dix crusades
Late 1800s Civil commitment
1900–1950s  State hospital populations

4. Historical Events, cont’d.
1963: Community Mental Health Act
Deinstitutionalization
Lack of community treatment resources
Expanded commitment laws

5. Historical Events, cont’d.
Managed Behavioral Health
Treatment access restricted
Carve outs to control costs
Insurance benefits meager
Premature discharges

6. Commitment Voluntary Patient consents to admission
Patient may request discharge
Emergency
Risk of harm to self or others
Short term
Longer-term judicial or civil
Protects community from persons posing a threat
Mandatory outpatient treatment

7. Least Restrictive Alternative
Use least restrictive environment
Use least restrictive treatment
Evolved to:
Use most clinically appropriate treatment
Use most cost-effective interventions

8. Confidentiality and Privileged Communication
Protection and privacy of health information guaranteed by HIPAA
Signed release necessary
Privileged Communication
No forced disclosure in court of certain information given to professionals

9. Tarasoff Duty to Warn and Protection
A treating mental health professional has a duty to warn potential identifiable victims.

10. Rights of Patient Vote Manage financial affairs Make contracts
Seek advice of attorney
Send and receive unopened mail
Wear own clothes
Receive visitors
Make phone calls
Have Informed consent regarding treatment and research participation

11. Right to Be Restraint Free
Seclusion and Restraint
CMS standards:
Client right to be restraint free is paramount
Use only when less restrictive alternatives fail
One hour rule

12. Right to Treatment
A nondangerous individual cannot be hospitalized without being provided with some form of treatment.

13. Right to Refuse Treatment
Medications
Voluntary and involuntary patients can refuse medication.
In emergency situations, if potential danger is present, patient can be medicated against his or her will.
ECT
Requires informed consent.
State laws vary regarding refusal.

14. Right to Advocacy Nursing Responsibilities
Obtain authorization for treatment.
Inform client of right to appeal for denial of care.
Provide data for utilization review.
Report violation of rights.

15. Competency to Stand Trial
Does the person understand:
The criminal charges?
The legal process?
The consequences of the charges?
Can the person advise an attorney and defend the charges?

16. Criminal Responsibility
M’Naghten Rule (Insanity Defense)
Refers to person’s state of mind at the time of the offense.
To be found guilty, person must be able to form intent.
If unable to form intent because of mental illness, person cannot be found guilty.
If not guilty, person is usually evaluated for commitment to a hospital for treatment.

17. Guilty but Mentally Ill
Possible plea in some states
Person found guilty, but mental illness caused commission of offense
Sent to prison and treated for mental illness

18. Malpractice
A health professional omits or commits an act that a reasonable prudent professional would not do.

19. Elements of Malpractice Suit Based on Negligence
Legal duty to provide a certain standard of care
Breach of duty
Proximate cause
“But-for” test
Substantial factor test
Proven injury

20. Documentation in the Medical Record
Legal document
Communication with other professionals
Validation that professionals adhered to scope of practice
Validation for reimbursement
Support for ongoing care/chosen care level

21. Other Malpractice Lawsuits Involving Health Professionals
Sexual misconduct
Wrongful death actions for:
Suicide
Homicide
Injury to third party

22. Ethics Explores moral problems raised about specific issues.
Ethical dilemmas in psychiatric nursing often relate to conflicts between mental health law and nurses’ personal beliefs.

23. Ethical Principles
Autonomy
Beneficence
Distributive justice