1. Legal Issues in Nursing and Health Care

2. Why is it important to understand the legal issues that impact nursing practice? Nurses are constantly faced with the challenge of making difficult decisions regarding good and evil or life and death Nurses are constantly faced with the challenge of making difficult decisions regarding good and evil or life and death

3. Nurses have a responsibility to: Nurses have a responsibility to: –Understand the legal obligations when caring for clients –Understand the legal limits influencing daily practice –Protect the client’s rights –Protect themselves from liability

4. Types of Law Statutory Law Statutory Law –Created by elected legislators (Congress, state legislatures) - STATUTES –Can be either criminal or civil –Example: Nurse Practice Acts (NPA), Emergency Medical Treatment and Active Labor Act (EMTALA) Common Law Common Law –Created by judicial bodies as a result of legal cases –Examples: “Informed consent,” “abortion rights,” client’s right to refuse treatment

5. Standards of Care Standards of care are guidelines for nursing practice, they delineate scope of practice, function and role of the nurse. They are defined in various ways: Standards of care are guidelines for nursing practice, they delineate scope of practice, function and role of the nurse. They are defined in various ways: –Nurse Practice Acts –State Boards of Nursing of each state –Federal/ state laws regulating hospitals and health care institutions –Professional and specialty nursing organizations –Facility policies and procedures

6. Scope of Practice Defined by: Defined by: –Nurse Practice Acts –Code of Ethics –Organization Standards –Policy and Procedure Manuals

7. Federal Statutes ADA (Americans with Disabilities Act) – is to end discrimination against qualified persons with disabilities by removing barriers that prevent them from enjoying the same opportunities available to persons without disabilities ADA (Americans with Disabilities Act) – is to end discrimination against qualified persons with disabilities by removing barriers that prevent them from enjoying the same opportunities available to persons without disabilities Emergency Medical Treatment and Active Labor Act (EMTALA) – is to prohibit refusal of care for indigent and uninsured patients seeking medical assistance in the ED Emergency Medical Treatment and Active Labor Act (EMTALA) – is to prohibit refusal of care for indigent and uninsured patients seeking medical assistance in the ED Mental Health Parity Act Mental Health Parity Act Patient Self Determination Act (PSDA) Patient Self Determination Act (PSDA) –Advance Directives (“living will”, “DNR”, “durable power of attorney”) Uniform Anatomical Gift Act – organ’s donation Uniform Anatomical Gift Act – organ’s donation HIPAA (Health Insurance Portability and Accountability Act) – to ensure confidentiality of the patient’s medical records HIPAA (Health Insurance Portability and Accountability Act) – to ensure confidentiality of the patient’s medical records Restraints Restraints

8. State Statutes Licensure - regulated by each state. Licensed by State Board of Nursing (minimum education requirements, successful completion of licensure exam (NCLEX). Can be suspended or revoked) Licensure - regulated by each state. Licensed by State Board of Nursing (minimum education requirements, successful completion of licensure exam (NCLEX). Can be suspended or revoked) Good Samaritan Laws (1998) - protects health professionals stopping to help in emergencies Good Samaritan Laws (1998) - protects health professionals stopping to help in emergencies Public Health Law - laws created to promote health and reduce health risks in communities (school immunizations, reporting communicable diseases) Public Health Law - laws created to promote health and reduce health risks in communities (school immunizations, reporting communicable diseases) Uniform Determination of Death Act (1980)- has been adapted in most states - changed standards for determining death Uniform Determination of Death Act (1980)- has been adapted in most states - changed standards for determining death Physician-Assisted Suicide (1994) - Oregon passed the Oregon Death with Dignity Act - first statue that permitted physician assisted suicide Physician-Assisted Suicide (1994) - Oregon passed the Oregon Death with Dignity Act - first statue that permitted physician assisted suicide

9. State Statutes Nurse Practice Acts: Nurse Practice Acts: –Establish education requirements –Distinguish between nursing and medical practice –Define the nurses scope of practice –Define nursing practice more specifically All nurses are responsible for knowing their Nurse Practice Act All nurses are responsible for knowing their Nurse Practice Act

10. Reporting Statutes Child Abuse Prevention and Treatment Act and Reporting Statutes Child Abuse Prevention and Treatment Act and Reporting Statutes –Mandate reporting specific health problems and suspected or confirmed abuse –Health professionals must report under penalty of fine or imprisonment for failing to do so:  Infant and child abuse  Dependent elder abuse  Specified communicable diseases

11. Common Law Issues in Nursing Practice Consent Consent –A signed consent is required for all routine treatment, hazardous procedures, some treatments, and research Abortion Issues Abortion Issues –Includes a woman’s right to have an abortion Student Nurses Student Nurses –Student nurses are liable if their actions cause harm to patients (liability is usually shared) Malpractice Insurance Malpractice Insurance –Professional insurance, contract w/ nurse and insurance company if nurse is sued for professional negligence or medical malpractice Abandonment and Assignment Issues Abandonment and Assignment Issues –Short staffing - Inadequate staffing/ patient ratios –Floating - Assignments to a department where the nurse does not normally work –Physician’s orders - Nursing judgment when carrying out physician orders

12. What is Informed Consent? In 1914, Justice Benjamin Cardozo stated, “ Every human being of adult years and sound mind has a right to determine what shell be done with his own body…” (Schloendorff v. Society of N.Y. Hospital) More about IC: http://www.ama-assn.org/ama/pub/category/4608.html

13. Definition Informed Consent (IC) is the duty of a health care provider to discuss the risks and benefits of a treatment or procedure with a client prior to giving care Informed Consent (IC) is the duty of a health care provider to discuss the risks and benefits of a treatment or procedure with a client prior to giving care

14. IC must include the following: 1. The nature of the procedure 2. The risks and hazards of the procedure 3. The alternatives to the procedure 4. The benefits of the procedure

15. When IC is Not Required In case of emergency situation (for minor or adult) A MINOR is defined as a person who has not yet obtained the age at which she or he is considered to have the rights and responsibilities of an adult (Alabama, Nebraska and Wyoming – 19 y.o., all other states – 18 y.o.). In case of emergency situation (for minor or adult) A MINOR is defined as a person who has not yet obtained the age at which she or he is considered to have the rights and responsibilities of an adult (Alabama, Nebraska and Wyoming – 19 y.o., all other states – 18 y.o.). It is prudent to obtain the IC from the adolescent in case if health care providers have made a reasonable attempt to contact the child parent It is prudent to obtain the IC from the adolescent in case if health care providers have made a reasonable attempt to contact the child parent

16. When IC is Not Required Many states allow the evaluation and treatment of a child for suspected physical or sexual abuse without the informed consent of a parent or guardian. Many states allow the evaluation and treatment of a child for suspected physical or sexual abuse without the informed consent of a parent or guardian. Photographing and taking an X-Ray (Utah) Photographing and taking an X-Ray (Utah) In case of forensic examination (do not force or restrain the child to perform genital or rectal examination) In case of forensic examination (do not force or restrain the child to perform genital or rectal examination)

17. When a minor can consent for care? Care involving pregnancy, contraception, or treatment of STD Care involving pregnancy, contraception, or treatment of STD Drug and alcohol treatment Drug and alcohol treatment In some states – emancipated children can make their health care decisions by themselves In some states – emancipated children can make their health care decisions by themselves

18. Emancipation Emancipation is the legal recognition that the minor lives independently and is legally responsible for his or her own support and decision making. Can occur through an official court proceeding Can occur through an official court proceeding In some states, a minor can automatically become emancipated by marrying, joining the military, or becoming a parent before the age of majority In some states, a minor can automatically become emancipated by marrying, joining the military, or becoming a parent before the age of majority Some states do not officially recognized any form of emancipation Some states do not officially recognized any form of emancipation

19. Consents A client’s signature implies that the client has been thoroughly informed about the procedure. A client’s signature implies that the client has been thoroughly informed about the procedure. Consent must be witnessed appropriately Consent must be witnessed appropriately Not considered informed if client is: Not considered informed if client is: –Confused –Unconscious –Mentally incompetent –Under the influence of sedatives, including preoperative medications

20. Legal signatures on consents Who can legally sign a consent: Who can legally sign a consent: –Individuals of legal age - 18 –Under legal age but have a valid marriage certificate –Emancipated minors (certain states) –A parent or legal guardian of a minor –A spouse or next of kin for an adult who is unconscious or mentally incompetent –Conservators –Court ordered consent –Telephone consents –Emergency consents

21. Civil Law Issues in Nursing Practice Tort - a civil wrong against an individual or property. May or may not be on purpose. It violates another person’s right’s Tort - a civil wrong against an individual or property. May or may not be on purpose. It violates another person’s right’s –Intentional  assault - attempt to threaten or harm another person (Ex: force feeding)  battery - intentional physical contact with a person without consent ( Ex: touching without the other person’s permission)  invasion of privacy - right to confidentiality (Ex: release of client’s medical information)  defamation of character - ridiculing others, slander, may apply to client or a colleague (Ex: attack the reputation of a colleague)  false imprisonment - confined or held against a person’s will (Ex: preventing a person from leaving the hospital voluntarily) –Unintentional  Negligence - an occasion when a person owes a duty to another and, through failure to fulfill that duty, causes harm  Malpractice - is professional negligence

22. For a court to recognize a claim of malpractice or negligence, four legal elements must be present 1. There must be a duty owed to the client by nurse 2. The nurse must breach the duty 3. The breach of duty must be the cause of the damage 4. There must be actual damage to the client

23. Risk Management A system for ensuring appropriate nursing care and identifying hazards before harm is done to a client. A system for ensuring appropriate nursing care and identifying hazards before harm is done to a client. –Steps in risk management  Identify possible risks  Analyze those risks  Act to reduce the risk  Evaluate the steps taken –Incident/occurrence reports

24. To Decrease Chance of Liability Caring, respectful attitude Caring, respectful attitude Follow standards of care Follow standards of care Give competent care Give competent care Communicate with other health care workers Communicate with other health care workers Develop a good therapeutic caring relationship (rapport) Develop a good therapeutic caring relationship (rapport) Document, document, document (accurately, completely, timely, factually, legibly) Document, document, document (accurately, completely, timely, factually, legibly) Stay current with your knowledge of your practice Stay current with your knowledge of your practice Know your clients Know your clients Confidentiality Confidentiality Informed consent Informed consent Physician orders Physician orders Malpractice insurance Malpractice insurance