1. Legal and Ethical Issues in Gerontological Nursing
N13A Gerontological Nursing
Fall 2020
April Wood DNP, RN

2. Describe legal issues in gerontological nursing practice.
Describe the major ethical principles that have an impact on older adults’ health care.
Discuss the difference between personal values and professional codes of ethics.
Apply legal and ethical principles in the analysis of complex issues related to care of older adults.

3. Legal Risk to Gerontological Nurses
Nurses must know basic laws and confirm their practice falls within sound boundaries.
Gerontological nurses function in autonomous roles.
They supervise unlicensed personnel and accountable for their actions.
Be aware that violation of the rights of older adults may lead to legal issues.
Nurses need to advocate for older adult rights.
Provision of service in a competent manner within standards of care
When performance deviates from standard of care, liable for malpractice
Negligent acts do not always warrant damages
Delegation of responsibilities
Increased responsibilities accompanied by increased risk of malpractice
Be aware of risks of practice and be proactive in preventing malpractice
Nurses should carry own malpractice insurance

4. Situations that increase risk for liability
Failure to provide service in a competent manner within standards of care
Working with insufficient resources
Not following agency policies and procedures
Bending rules
Taking shortcuts
Working when physically/emotionally exhausted
Standard of care: the norm for what a reasonable individual with the same training and qualifications would do in a similar circumstance or situation.

5. What is Malpractice?
Nursing malpractice occurs when a nurse fails to competently perform his/her duties and harms the patient.
Concerns in all 3 areas must be present to warrant a malpractice claim:
Duty- A relationship between the nurse and the patient has been established in which the nurse has assumed responsibility for the care of the patient.
Negligence- A failure to conform to the standards of care that contributes to a patient’s injury with or without intention to harm.
Injury: physical or mental harm to another or violation of a person's rights resulting from a negligent act
Failing to take action
Contributing to patient injury
Failing to report a hazardous situation
Handling patient possessions inappropriately
Failing to follow policies and procedures

6. Violation of Patient Rights
Assault- threat of harm
Battery- physical harm
Defamation of character
Libel & slander
False Imprisonment
Fraud
Invasion of privacy
Larceny
Negligence
Malfeasance
Misfeasance
Nonfeasance
Criminal negligence
Elder Abuse
Unreasonable confinement
Deprivation of services
Exploitation
Physical abuse- The willful infliction of physical pain or injury
Financial abuse- Theft or mismanagement of money or resources
Social abuse- Infliction of debilitating mental anguish and fear
Malfeasance- misconduct or wrongdoing
Misfeasance- trespass- performing a duty in an illegal or improper manner
Nonfeasance- fail to take proper action or report a violation
Nurses are mandated reporters of suspected abuse, it is your legal duty
Criminal negligence- intentionally ignores to disregards potential risks to live and safety

7. Patient Confidentiality
Securing patient medical records
Nurses cannot discuss patient issues with family members without the patient’s explicit permission
Comply with your agency’s policy regarding access to patient information and procedure for sharing
Health Insurance Portability and Accountability Act (HIPPAA)
Patients have access to their medical records
Patients have control over how personal health information is used and disclosed
Other provisions for legal information disclosure

8. Patient Informed Consent
Patients are entitled to know full implications of procedures, ability to make independent choices and decisions
Consent must be obtained prior to any medical/surgical procedure
Who is performing the procedure
The risks, benefits, alternative treatment options
Consider patient’s mental status/ sensory impairments
Consent must be informed- consider patient’s level of health literacy and language proficiency
Nurses should not influence patients’ decision
Can verify patient’s understanding of the procedure
Witness the patient’s signature and date signed
Consent: granting of permission to have an action taken or procedure performed
Written description of the procedure and its purpose
The nurse can help determine if the patient:
Can make a choice
Understands and appreciates the issues
Rationally manipulates information
Makes a stable and coherent decision
Age-related factors:
Hearing and visual impairments
Impaired communication: written and verbal
Values and beliefs
Fluctuating or diminished decision- making capacity

9. Determining Patient Competency/ Decision-making Capacity
Assess the person’s ability to understand the nature and consequences of different medical treatment options, make a choice among those options, and communicate that choice.
This may fluctuate over time from transient changes in ability to comprehend and communicate
Right to Refuse Care- must be competent
Sometimes competency must be legally verified or the court may appoint someone as decision- maker when the person is legally “incompetent”
Competency- Legal determination by a judge as to mental disability or incapacity; whether a person is legally fit and qualified to give testimony or execute legal documents.
Durable power of attorney: allows competent individuals to appoint someone to make decisions on their behalf in the event that they become incompetent
Persons who are mentally incompetent are unable to give legal consent.
The right to refuse treatment even if refusal hastens or results in their death.
Requisite capacity must be determined:
Can make a choice- Ability to voice a choice or preference
Understand and appreciate the issues
Rationally manipulate information
Make a stable and coherent decision

10. Advanced Directives/ Do not Resuscitate Orders
Advance directives express the patient desires for terminal care and life-sustaining measures when they become mentally incapacitated or unable to voice their own decisions.
The Patient Self-Determination Act (PSDA) requires health care facilities to ask a patient about advance directives.
California End of Life Option Act (2016) Physician-assisted suicide legal in 7 states
DNR (do not resuscitate)—is a medical order
POLST- Physician Orders for Life-Sustaining Treatment valid towards end of life
States vary in use and types of advance directives.
Living Will
Durable Power of Attorney for Health Care (DPOAHC) or Health Care Proxy (HCP)
Advanced healthcare Directives
Nurses should not be the legal witness to a will.
Pronouncement of death falls within the scope of medical, not nursing, practice in several states.
Consent for autopsy must be obtained, except in cases of criminal act, malpractice, or occupational disease.
Patient Self-Determination Act (PSDA) mandates:
Provide all adult patients with written information concerning care decisions
Ask patients whether they have an Advance Directive.
Maintain policies re: discussions of Advance Directive.
Honor Advance Directive.
Educate patients about Advance Directive.
Conduct community education
Do not discriminate

11. Safeguard your Nursing Practice
Delegation of tasks
Do not assign tasks to unqualified staff
Routinely supervise and evaluate staff performance
Communication
Read back telephone/verbal doctor’s orders
Ask them to send a written & signed order within 24 hours
Use of Restraints
Responsibly follow agency policies- must have active MD order, must check patient frequently, etc.
Omnibus Budget Reconciliation Act (OBRA)- Imposes strict standards on use of restraints: both chemical and physical

12. Philosophies Guiding Ethical Thinking
Utilitarianism: good acts benefitting greatest number of people
Egoism: morally acceptable benefit for oneself
Relativism: right and wrong relative to situation
Absolutism: specific truths to guide actions
Deontological ethics holds that at least some acts are morally obligatory regardless of their consequences for human welfare. Descriptive of such ethics are such expressions as “Duty for duty's sake,” “Virtue is its own reward,” and “Let justice be done though the heavens fall.” In moral philosophy, deontological ethics or deontology is the normative ethical theory that the morality of an action should be based on whether that action itself is right or wrong under a series of rules, rather than based on the consequences of the action. Kant believed that ethical actions follow universal moral laws, such as “Don't lie. Don't steal. Don't cheat.”
Utilitarians believe that the purpose of morality is to make life better by increasing the amount of good things (such as pleasure and happiness) in the world and decreasing the amount of bad things (such as pain and unhappiness).

13. Common Ethical Terms to Know
Autonomy: to respect individual freedoms, preferences, and rights
Beneficence: to do good for patients
Confidentiality: to respect the privacy
Ethics: a system of moral principles that guides behaviors
Fidelity: to respect our words and duty to patients
Justice: to be fair, treat people equally
Nonmaleficence: to prevent harm to patients
Veracity: trustworthiness and truthfulness
Nonmaleficence – do no harm; protect patient from harm if they cannot protect themselves
Patient abandonment (The desertion of an older person by an individual who has assumed responsibility for providing care and support for an individual, or by a person who has guardianship and administration responsibilities for an older person.)
Personal relationships with patient
Impaired practice

15. Ethical Dilemmas Facing Gerontological Nurses
Honesty vs. withholding information about patient prognosis. Science vs. Spirituality- some religions restrict medical interventions and lifesaving techniques. Healthcare needs vs. resource allocation- medical facilities with scarce resources put some patients at risk for not getting adequate care. Who get priority care? Autonomy vs. beneficence. Nurses are duty-bound to safely administer prescribed medicine, but patients can refuse them. Nurse-patient relationships- when boundaries become blurred Duty to report – behaviors of a coworker, supervisor, etc.… Professional practices vs. personal values- withdrawing life-support, abortions, shackling prisoners to hospital beds, …
Most clinical situations not simple, clear-cut ethical decisions
Conflicts with nurses’ values
External systems affecting decisions
Conflicts with rights of patient and nurses’ responsibility
Honesty vs. withholding information. Family members may want to withhold medical information from sick patients to protect their emotions. However, patients have the right to know about their medical conditions.
Science vs. spirituality. Healthcare, which is science-based and results driven, can impede religious or personal beliefs. Some religions restrict medical interventions and lifesaving techniques. Nurses focus on providing medical care to reduce suffering and to allow patients to concentrate on self-care. For patients or their families with strong religious or spiritual convictions, the focus may be on adhering to a strict set of guidelines.
Healthcare needs vs. resource allocation. The rising cost of healthcare is increasingly putting nurse managers at odds with budgeting constraints and patient needs. A large number of medical facilities have scarce resources, which puts patients at risk for not getting the care they need.
Autonomy vs. beneficence. Nurses are required to administer prescribed medicine, but patients, at the same time, can refuse them. Patient autonomy can go against medical directives, despite clearly defined needs. Patients have a right to refuse all medical care.

16. Questions to consider?
What are the ethical principles and duties related to appropriate actions by the nurse and other health care professionals?
What things are optional actions?
What are the obligatory actions?

17. Collect, analyze, and interpret the data State the dilemma
Consider the choices of action
Analyze advantages and disadvantages of each course of action
Make the decision
Evaluate the effectiveness of the decision
Encourage patients’ expression of desires
Identify significant others who impact and are impacted
Know yourself
Read and discuss
Form an ethics committee
Consult experts
Share and evaluate decisions

18. Case Scenario
Two months ago, Mr. M.T. (80 years old) and his wife were involved in a severe auto accident. Mrs. A. T. died. Mr. M.T. previously told his 3 children that should he ever become seriously injured or ill and unable to live his life as he has in the past, he doesn't wish to be treated with extraordinary measures to continue his life.
Two of the children agreed that their father would not want to live with the residual effects of his injuries should he recover. The third child, emotionally distant from the father until the last 6 months, desperately desires any relevant treatment for her father to allow his possible recovery even if it means he has decreased quality of life.
Mr. M.T.’s current condition is stable, he is recovering as expected from his injuries but remains unconscious and may have permanent cognitive impairments from his head injury. There are no written advanced directives or living will. Should the nurse advocate for Mr. M.T.’s code status be changed to a “no code” ?

19. Steps in the Process Identify the issue Whose decision is it?
Does an ethical dilemma exist?

20. Does an ethical issue exist? Yes Identify ethical principles
Relate principles to facts
Appeal to an ethical theory No
Resolve using usual problem solving methods

21. Appeal to an ethical principle Utilitarian ism Identify alternatives
Predict consequences
Identify positive and negative consequences
Deontology
Rank ethical principle(s) of case
Resolution

22. Question #1
Elements of informed consent include all of the following except?
The purpose of the procedure
The time required to complete the procedure
Alternatives to the procedure
Expected consequences and risks of the procedure

23. Answer to Question #1 B. The time required to complete the procedure
Rationale: Written informed consent includes a description of the procedure, its purpose, alternatives to the procedure, expected consequences, and risks.

24. Question #2 Which statement is true related to the use of restraints?
Geriatric chairs are not restraints.
Alternatives to restraints should be used whenever possible.
Physicians’ orders for restraints are not required in long- term care facilities.
The Omnibus Budget Reconciliation Act (BORA) heightened the impact of restraints in acute care settings.

25. Answer to Question #2
B. Alternatives to restraints should be used whenever possible.
Rationale: Geriatric chairs are considered restraints, physician orders are required for restraint use in any health care setting, and BORA increased the awareness of restraint use in long-term care.
Alternatives to restraints should be used whenever possible to promote safe and effective care.

26. Question #3 Which statement best describes relativism?
Good for the greatest number of people
Greatest benefit to oneself
Situational ethics
Specific truths

27. Answer to Question #3 C. Situational ethics
Rationale: Relativism can be referred to as situational ethics, in that right and wrong are relative to the situation.

28. Question #4 Is the following statement true or false?
Increasing ethical dilemmas for nurses often occur as there is a wider scope of nursing practice, combined with higher salaries and greater status that has increased the accountability and responsibility of nurses for the care of patients.

29. Answer to Question #4 True
Rationale: The expanded role of nurses has introduced new areas of ethical dilemmas to nursing practice as nurses now perform sophisticated assessments, diagnose nursing problems, monitor and give complicated treatments, and increasingly make independent judgments about patients’ clinical conditions.