Legal Aspects of Professional Nursing

1. Legal Aspects of Professional Nursing Catherine Hrycyk, MScN, RN

2. Law vs. Ethics

3. What is law? • Law • Sanctioned rules of conduct • Authored & enforced by authorities bodies • Enforced by sanctions • Purpose of Nursing Law • Protect patient and nurse • Scope of practice (define it) 3

4. US Legal System • Separate but equal branches of government: • Executive • Administrative law – delegated authority to government agencies • Legislative • Judicial • Sources of law: • Common law – court rulings become law • Statutory law – established through formal legislative processes • Administrative law – delegated authority to government agencies 4

5. Sources of Law • Constitution: establishes a basis for a governing system (highest law that gives authority to the other branches) • Statutes:laws established by legislative bodies through legislated processes • Administrative law: regulations established by administrative agencies that are given authority to create rules and regulations to enforce statutes (BRN) • Common law: court decisions become law (legal precedents)

6. Types of Law • Criminal law: • Sanctions acts against an individual or society • Innocent until proven guilty beyond a reasonable doubt • Sanctions range from fine to jail to death penalty • Civil law: • Regulates right and duties of legal subjects • Usually financial sanction, possible imprisonment • Administrative law: • Regulates work of public agencies (e.g. BRN) • Public agencies and bodies specific regulatory powers 6

7. State Boards of Nursing, Nursing Practice Acts, and Licensure • Purpose of licensing: • To protect the public health, safety, and welfare • Ways to get licensed • Nursing Practice Act • Defines and controls nursing • State Boards of Nursing • Regulatory bodies • The legislature delegates authority to enforce the law to an executive agency – board of nursing. • The board of nursing enforces the laws and publicizes rules and regulations that expand the law

8. Nursing Practice Regulations California Board of Registered Nurses (BRN): • Regulates nursing practice in California • Creates Rules and Regulations to administer the Nurse Practice Act (NPA) • Describes rules of conduct for nurses • Registered Nurses Act California

9. Informed Consent • Legal expression of the ethical principle of autonomy: • Implicit • Explicit • Obtained by the person performing the procedure • When obtained by another practitioner, nurse’s role: witness / monitor • Emergency consent is presumed when patient unable to provide • Nurses role is to make sure pt. understands everything and that the person that signs is the person who needs to be signing!

10. Capacity to Consent • Decision-making capacity (not competency) determined by: • Appreciation of right to make the choice • Understanding of risks/benefits of procedure • Understanding of risks/benefits of opting out of procedure • Ability to communicate decision: • Communication may not always be verbal • Professional interpreter to assist with language issues • Use layman jargon

11. Assault and Battery • Assault is a threat or an attempt to make bodily contact with another person without the person’s consent • No contact required • Any action that would make a reasonable person in simillar condition feel threatened • Impermissible, unprivileged touching of one person by another • Contact required

12. Advance Directives • Sometime generically called “Living Will” • Allow patient to exercise autonomy if incapacitated • Not same as DNR (do not resuscitate) • DNR is exactly what it’s called – DNR nothing more and nothing less! • Advanced Directives documents stating the pts wishes for healthcare interventions if they should become incapacitated

13. Advance Directives • Directive to healthcare providers and family or surrogate • Documents patients’ wishes for treatment or withdrawal • Durable Power of Attorney for Health Care • Patient designates another person as their decision maker • Out of Hospital Do-Not-Resuscitate Order • Allows competent adults to refuse life sustaining procedures when out of the hospital setting. Can include not wanting to be taken to ER, let me sit here and die… • Declaration of Mental Health Treatment • Allows a court to determine incapacity and allows the pt to refuse electro convulsive therapy (ECT) and psychoactive drugs

14. Special Situations… Advance directive not available: • Autonomy versus “best interest” of clients • Substituted judgment • Surrogate decision maker appointed Dementia clients: • Dementia diagnosis does not necessarily mean the pt is incapable of making their own decisions • Careful interprofessional assessment essential

15. The Patient Self-Determination Act Acute care and long-term care facilities must: • Provide written information to all adult patients about their rights under state law • Ensure institutional compliance with state laws on advance directives • Provide for education of staff and the community on advance directives • Document in the medical record whether the patient has an advance directive 15

16. Confidentiality • Nurses must keep information obtain while providing care confidential • Legal and ethical issue: • Regulated by federal and state statutes • Ethical aspects addressed in ANA Code of Ethics • Exceptions and limitations (e.g. mandatory reporting of abuse, public health reporting rules, etc.)

17. HIPAA • Health Information Portability and Accountability Act (1996) • Protects the privacy of health information • Nurse can communicate patient info to insurance agencies and/or other providers involved in the care of a patient to the extent required to maintain continuity of care or for billing purposes • Patients have right to obtain copies of their health records • Custodian of the records must provide them within reasonable amount of time 17

18. Liability • Liable: to be legally responsible by law • Personal liability: every person is liable for his/her own conduct • Joint liability: nurse, physician, and employing organization are liable • Respondeat superior liability:“the capetan is responsible for the acts of sailors”: • Who is responsible for activities delegated to UAP? 18

19. Negligence: the omission to do something that a reasonable and prudent person in a similar situation would or would not do Prudent: the average judgment, foresight, intelligence and skill expected of a person of similar training or experience Malpractice: failure of a person with professional training to act in a reasonable and prudent manner Professional Negligence

20. Professional Negligence Six components necessary for professional negligence to occur: • Duty to act • Standard of care • Failure to meet standard • Foreseeability of harm • Correlation b/t care and harm must be proven • Actual patient injury must occur 20

21. Intentional Torts • Assault & Battery • Assault is the behavior that makes a person fearful of harm • Battery is an intentional physical contact with a person that causes injury • False Imprisonment • Any unlawful confinement within fixed boundaries • Can be physical, emotional, or chemical • Defamation of character (slander / libel) • False statement that damages a person’s reputation • Invasion of privacy

22. Preventing Negligence and Malpractice • Meet the standard of care (Including accurate documentation!) • Practice in a safe setting • Question authority • Follow up on unsafe situations / practices • The Joint Commission and 2005 Patient Safety Goals • Effective communication with patients, families and other health professionals and agencies –establish therapeutic relationship! • Carry and understand professional liability insurance

23. Claims Against Nurses • Examples: • Inadequate charting. • Inadequate communication regarding changes in condition • Leaving potentially harmful items within patient reach • Unattended patient falls • Inaccurate counting of operative instruments & sponges • Misidentifying patients for medications, surgeries & tests 23

24. Incident Reports • Administrative documents: • Intended to improve systems and processes • Not part of the patient chart • Unusual / unexpected incidents DO: • Document incident information, treatment & follow up on chart • Notify Nursing Management & Risk Management DO NOT: • Leave copy on chart or document form completion in chart • Discuss with pt / family

25. Causes of License Suspension • Professional negligence • Practicing nursing w/o a license • Obtain license by fraud • Felony convictions • Not reporting substandard medical or nursing care • Providing patient care under the influence of drugs/alcohol • Giving narcotics w/o order • Falsely portraying self to public or any HCP as a nurse

26. Other Important Regulations Whistleblower Act • Prevents employers from taking retaliatory action against nurses for reporting improper patient care or business practices Good Samaritan Act • Generally, a nurse is not liable for injury that occurs as a result of emergency treatment, provided that: • Care is provided at the scene of emergency • The care is not grossly negligent

27. Joint Commission Independent not for profit organization that accredits and certifies healthcare organizations • Purpose: continuously improve health care for the public, in collaboration with other stakeholders, by evaluating health care organizations and inspiring them to excel in providing safe and effective care of the highest quality and value

28. Joint Commission National Patient Safety Goals 1. Improve accuracy of patient identification 2. Improve the effectiveness of communication among caregivers 3. Improve the safety of using medications 4. Reduce the risk of healthcare associated infections 6. Accurately and completely reconcile medications across the continuum of care 7. Reduce the risk of patient harm resulting from falls 8. Prevent healthcare associated pressure ulcers 9. The organization identifies safety risks inherent in its patient population 10. Universal protocol