Ethical and Legal Context of Psychiatric Care

Ethical and Legal Context of Psychiatric Care Chapter 10 Rochelle Roberts RN MSN

Psychiatry and the Law

Psychiatry and the law • Relationship between Psychiatry and the Law reflects a tension between individual rights and social needs.

Ethical considerations for Psychiatric Nurses • Ethical dilemmas • “What is the right thing to do?” • When is it appropriate for society to regulate personal behavior?

Ethical Considerations • Sensitivity to patient’s rights and needs. • The element of power • Skilled clinician versus”keeper of the keys” • Paternalistic attitude: deciding what is best for another person, without considering the person’s thoughts, feelings, or preferences.

Types of Hospital Admission • Voluntary • Involuntary

Characteristics of Voluntary Admission • Written application by the patient • Civil rights are fully retained by the patient (right to vote, hold a driver’s license, buy and sell property, hold office, practice a profession, engage in a business. • Discharge is initiated by the patient • Justification: patient voluntarily seeks help

Characteristics of Involuntary Admission (Commitment) • Admission did not originate with patient • Discharge is initiated by the hospital or court • Patient may retain some, none or all civil rights depending on state law. • Justification: mentally ill and one or more of the following: • Dangerous to self or others • Need for treatment • Unable to meet own basic needs

The Commitment Process • Process begins with a sworn petition by a relative, friend, physician stating that the person is mentally ill and needs treatment. • Examination of the patient’s mental status. (Some states require at least one of the physicians be a psychiatrist. • Determination as towhether to hospitalize the patient or release them is made next by the physician or courts (judge or formal jury)

Three Lengths of Hospital Stay • Emergency- to control an immediate threat to self or others • Short-term or Observational- to diagnose and for short-term therapy • Long-Term is for an indefinite time or until the patient is ready for discharge. Periodic reviews may be made every 3, 6, or 12 months.

Research on “Dangerousness” (McConnell & Catalano) 2000 • Studies show that most mentally ill people are not inherently dangerous to themselves or others. • Research does suggest, however, that a sub-group of people with mental illness may be more dangerous.

Sub-Group Characteristics • A history of one or more of the following: • Violent behavior • Psychosis • Noncompliance with medications • Current substance abuse • Antisocial personality disorder

Patients’ Rights (AHA) Patient’s Bill of Rights • Evolved into the Patient Care Partnership document (AHA, 2003) • Right to communicate with people outside the hospital. This allows for telephone conversations and visits and send unopened letters.The hospital can limit the access when it could harm the patient.

Patient Rights (cont) • Patient may bring clothing and personal items to the hospital. • Right to religious freedom • Right to enter contractual relationships, if the person understands the circumstances of the contract and its consequences. Mental competency is related to this right. Incompetence is a legal term without a precise medical meaning.

Incompetence • To prove incompetence in court, all of the following must be shown: • The person has a mental disorder. • This disorder causes a defect in judgment. • This defect makes the person incapable of handling personal affairs.

Patient Rights (cont) • Right to Education is guaranteed by the Constitution. • Right to legal representation. • Right to treatment and to refuse treatment. • Right to habeas corpus. It provides for the speedy release of any person who claims to be detained illegally. • Right to privacy.

Confidentiality • Health Insurance Portability and Accountability Act (HIPAA) guarantees 4 patient rights: • To be educated about HIPPA privacy protection (hx, diagnosis,treatment) • To have access to their own medical records • To request correction or amendment of their health information to which they object • To require their permission for disclosure of their own personal information

The Circle of Confidentiality as a model • Inside the circle: patient, treatment team members, students and faculty, health care consultants and staff supervisors can share patient information.

Circle of Confidentiality • Outside the circle: • Family is not automatically entitled. The nurse must first obtain clear consent from the patient. • Lawyers, reimbursers, law enforcement, regulators, support staff must also obtain permission from the patient.

Exception of confidentiality: “Duty to Warn” (Tarasoff case 1974) • When a therapist is reasonably certain that a patient is going to harm someone, the therapist has the responsibility to breach the confidentiality of the relationship and warn or protect the potential victim.

Right to consent • Psychosis does not necessarily mean that a person is unable to consent to treatment and many psychotic patients are capable of giving informed consent.For patients not able to consent and for all minors, informed consent should be obtained from a substitute decision maker.

Right to refuse medication • Symptoms such as delusions and denial may cause the refusal. • Nurses should judge each situation on a case-by-case basis.

Three criteria that may justify coerced treatment • The patient must be judged to be dangerous to self or others • It must be believed by those administering treatment that it has a reasonable chance of benefiting the patient. • The patient must be judged to be incompetent to evaluate the necessity of the treatment.

Right to treatment in the least restrictive setting • Maintain the greatest amount of personal freedom, autonomy, dignity, and integrity in determining treatment • Restriction includes the nature of the choices being restricted and the method by which choices are restricted.

Hierarchy or levels of Restrictiveness • Four-point restraint • movement in space, (seclusion rooms) • Decisions of daily life, (selection of TV program, food) • Activities • Treatment choice • Control of resources ($) • Verbal or non-verbal expression (censorship)

Legislative Initiatives • Protection and Advocacy Act (1986) all states must designate an agency that is responsible for protecting the rights of the mentally ill. Mission is to investigate incidents of abuse and neglect of persons who live in institutions.

Americans with Disabilities Act (1990) • Protects Americans with physical or mental disabilities form discrimination in jobs, public services, and accommodations. It also prohibits discrimination in hiring, firing, training, compensation, and advancement in employment.

Advance Directives • Federal regulations require all facilities that receive Medicare or Medicaid to inform patients, including psychiatric patients, at the time of their admission about their rights under state law to sign advance directives. These are documents that are written while a person is competent, that specifies their personal decisions regarding treatment.

Mental Health Courts • First authorized in 2000 by Congress. • Created innovative approach to divert offenders into treatment programs. • Keeps people who have severe and persistent mental illness and commit minor offenses from being incarcerated in jails and prisons and, instead, get treatment.

Legal Role of the Nurse • Nurse as Provider: If nurses fail to provide competent care that results in harm to the patient, malpractice occurs. • To avoid litigation, the psychiatric nurse can follow the following preventive measures: • Implement nursing care that meets the Scope and Standards of Psychiatric Mental Health Nursing Practice (ANA, 2000)

Legal Role of the Nurse • Know one’s state laws • Keep accurate and concise records • Maintain patient confidentiality • Consult a lawyer if any questions arise.

Nurse as Employee • Nurses are responsible to supervise and evaluate those under their authority for the quality of care given. • They must observe their employer’s rights and responsibilities to clients and other employees, fulfill the obligations of the contracted service.

Nurse As Citizen • This role forms the foundation for the nurse’s other legal relationships. • These are inherent rights that include civil rights, property rights, right to protection from harm, and right to due process.

Common areas of liability in psychiatric services • Sexual contact with a patient • Preventing patient suicide • Med errors • Problems related to ECT • Breach of confidentiality • Failure to refer a patient • Failure to obtain informed consent • failure to report abuse

Ethical and Legal Context of Psychiatric Care