Legal Issues: Duty to Report and Whistle Blowing

1. Legal Issues: Duty to Report and Whistle Blowing NUR 112 Objectives p. 9

2. Duty to Report • Ethical guidelines from ANA Code (p. 315) • Issue of patient advocacy • Patient’s Bill of Rights • Statutory duty—Nurse Practice Act: • “Providing for the maintenance of safe and effective nursing care, whether rendered directly or indirectly.” (One of the 10 components of practice.)

3. Conditions to Report (Facilities and Individuals) • Endangering safety • Criminal offenses (diversion, murder) • Malpractice • Patient abuse/neglect • Fraud • Bullying/harrassment

4. Conditions to Report, cont’d • Abandonment • Breach of confidentiality • Exceeding scope of practice • Impairment on duty • Positive drug screen performed for cause

5. JCAHO Standards Violations • Joint Commission allows reporting of complaints by patients, families, staff, government organizations, or the public for violations of standards by an organization, if JCAHO was the accrediting agency for the organization. • If complaint is about a continuing threat to patient safety or a failure to comply with standards, JCAHO may conduct an unannounced or unscheduled on-site evaluation of the organization.

6. Violations of Nursing Practice Act • N.C. General statute 90-171.47 allows any person who has reasonable cause to suspect misconduct or incapacity of a licensee to report it to the Board. • The Board would then investigate and, even if the charge was dismissed, the person who reported would be immune from criminal and civil charges, unless the person knew the report was false, or acted with reckless disregard.

7. Whistle Blowing • Disclosure of information by a member of staff that relates to danger to health or safety, criminal activity, failure to comply with a legal duty or standard of care, or unethical behavior of another staff member or an organization. • Information must be reported in good faith • Person must believe it to be true • Person must not seek any personal gain

8. Things to Know about Whistle Blowing • According to the Center for American Nurses: • Reserve judgment until you have adequate documentation and facts straight • Do not expect anyone to welcome your concerns. Remain calm, even if provoked • Seek counsel outside of the organization. • Research your state for whistle blower legislation • You are not protected unless you actually report it • Report to agencies that regulate the organization, preferably in writing. Keep documentation objective and keep copies! • Report to law enforcement if criminal

9. Deterrents to Reporting • Fear of losing job • Fear of isolation • Fear of not getting another job • Fear of being labeled as a “snitch” or “whistle blower.” • Fear of bullying and harrassment • Intimidating and disruptive behavior

10. JCAHO’s Sentinel Event Alert #40: Behaviors that Undermine a Culture of Safety • Acc’d to ISMP, 40% of clinicians have kept quiet or remained passive during patient care events rather than question a known intimidator. • Intimidating and disruptive behavior erodes professional behavior and creates an unhealthy or hostile work environment. • Vanderbilt University Medical Center code of conduct states that, “Any behavior which impairs the health care team’s ability to function well, creates risk.”

11. Disruptive Behaviors: AKA, Incivility • Most commonly exhibited by clinicians in positions of power. High revenue producers are treated more leniently. • However, other disciplines are also noted for these behaviors including nursing, pharmacy, radiology, therapists, support staff, and administration. • Intimidating and disruptive behaviors can foster medical errors, contribute to poor patient satisfaction, and to preventable adverse outcomes.

12. Examples • Verbal outbursts • Physical threats • Condescending language or voice intonation • Uncooperative attitudes • Refusing to perform tasks • Impatience with or refusing to answer questions • Not returning phone calls or answering pages

13. Root Causes • History of tolerance and indifference to these behaviors • Inherent stresses of the job + fatigue • Care providers who exhibit characteristics such as self-centeredness, immaturity, or defensiveness may be more prone to these behaviors because they lack interpersonal, coping, or conflict management skills.

14. JCAHO’s Leadership Standard • The hospital/organization has a code of conduct the defines acceptable and disruptive and inappropriate behaviors. • Leaders create and implement a process for managing disruptive and inappropriate behaviors.

15. JCAHO’s Recommendations • Educate staff about facility’s code of conduct and assess their perception of it’s seriousness • Hold them accountable to model desirable behaviors • Develop policies and procedures: • Zero tolerance • Reduce fear of retaliation • Respond to patients/families who are witnesses • How and when to begin disciplinary actions

16. Recommendations cont’d • Provide training for management in relationship-building and collaboration. • Develop a process for detecting behaviors • Develop non-confrontational strategies to deal with these behaviors • Document all attempts to address intimidating and disruptive behaviors.